23rd Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 3 p.m. and read prayers.
page 425
– I wish to ask a series of questions of the Leader of the Government in the Senate. As I am suffering from a temporary physical disability, I am unable to read the typewritten text of the questions, and with the consent of the Senate I shall ask Senator O’Flaherty to read them on my behalf.
– The text of the questions reads as follows: - I preface the questions by stating that the New South Wales Housing Commission was not set up until 1941 when a Labour government was elected in that State, whereas housing instrumentalities in Queensland and Western Australia were operating for many years prior to 1941. The questions are -
– I have a sneaking suspicion that this question has something to do with the poll to be held in New South Wales next Saturday. I think the appropriate way to answer those parts of the question which relate to the new housing agreement is to say that the new housing agreement was hammered out by the Commonwealth and the States, was accepted by the States and was signed by the States. It is a document to which all parties consented.
As to those parts of the question which relate to rental rebates, the situation is that the Commonwealth said to the States, in effect, “ Some of the States want the rental rebate system to continue; some of them do not want it to continue; so the Commonwealth will give the money at a concessional interest rate. Those States which want the rental rebate system to be continued may continue it, using that interest concession. Those States which do not want to continue the rental rebate system can use the interest concession in other ways.” 1 am not quite sure, but I think the net result was that only two of the States continued with the rental rebate system.
Speaking from memory, I think thai while the rental rebate system was in operation and up to the present time, no claims have been made by the States upon the Commonwealth under the arrangement. The system was a good thing on paper. In practice, it gave no advantage to the States, and the States, because of that, and for other reasons, did not continue it. The circumstances are the same to-day. The economic rental that was fixed was sufficient to cover any discounts that were allowed under rental rebate. The economic rental is being continued on the same basis, and it is quite competent for any States, within the limits of the concession that is already made available to them, to continue with the rental rebate system. That being so, a plea for the rental rebate system to be continued is a piece of nonsense. The rents that are being charged in New South Wales at the present time are sufficient to cover rental rebates if the New South Wales Government wants to make rental rebates.
– I should like to move a vote of thanks to the Minister.
– I did not quite, catch the interjection. If I understood the honorable senator correctly, he thinks the States ought to pass a vote of thanks to the Commonwealth. I agree with him because I think the Commonwealth, as it usually does, has dealt very generously indeed with the States.
As to the general all-round housing position, let me repeat what I have said ad nauseam. The worst position in the Commonwealth exists in New South Wales. That is due to the utter incompetence of the New South Wales Government. At the end of lune, 1958, the estimated shortage of houses in Australia was 80,000. Of that number, the estimated shortage in New South Wales was 48,000. More than half of the total housing shortage of Australia is located in New South Wales, and 1 say, through you, Mr. President, to the people of New South Wales, that the only way to remedy that position is to throw out the Cahill Government.
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– By way of preface to my question, which is directed to the Minister for National Development, let me say that 1 understand that Australia’s lead and zinc producers now receive £100 a ton for their products. As this figure is above world parity, could the Minister advise the Senate of the method adopted to ensure the above return?
– I am not quite certain of the purport of the honorable senator’s question. He is, I think, pointing out that lead and zinc are being sold in Australia at a price higher than the world parity price. I believe that this is correct. Lead and zinc prices are fixed by the people who buy and sell. There is not just one vendor of lead and zinc, and these people must face competition. A number of mines have products, in different forms, to sell. I think that the present higher Australian price is a recent development and results from deterioration in trading conditions overseas.
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– 1 preface my question to the Minister for Civil Aviation, by saying that on. 11th March a report appeared in the Melbourne press claiming that a decision on the proposed Tullamarine airport would be made within the next ten days. Will the Minister give an undertaking that no decision regarding the Tullamarine proposal will be made until the Boeing 707 jet aircraft has been subjected to noise tests at Avalon, and Tullamarine residents and Keilor-Broadmeadows shire and city councils have been furnished with detailed reports thereon? Further, will he state whether an opportunity will be given to public authorities and other interested parties to attend take-offs and landings of 707 jets at Avalon?
– First, I should like to say that the report appearing in the Melbourne press - to the effect that a decision in. this matter will be made within ten days - is not correct. Indeed, it is quite incorrect. At the moment some details of the recommendations made by the investigating panel are being considered by the department, following a request submitted by some of the more responsible bodies - people who might be affected or are living in this area. I do not refer to the rather less responsible statements which, I suspect, emanate from the public relations officer who has been employed by some interests to prosecute their case in this matter. The Boeing 707 has undergone extensive noise tests in New York. It has been subjected to these tests by a firm of consultants acting on behalf of the New York port authority, which controls the three airports of New York. Indeed, it is on these expert reports that the recommendations of the advisory panel, and the recommendations in my own department, have been based. I might add that representatives of my department have been in New York while these tests have been taking place. It is not intended that when the aircraft gets to Australia and commences its crew training programme from Avalon it will again, be subjected to these noise tests. I cannot, therefore, give to the honorable senator the assurance which he seeks, but I do say with all sincerity that if any public bodies want to test the noise that emanates from this aircraft they would have no difficulty at all in stationing representatives in the vicinity of Avalon while the crew-training programme is in progress so that they could actually listen to the aircraft in flight. Indeed, I would suggest that if any one wanted to make a really objective test of the noise that emanates from the aircraft he would get at Avalon a better indication of what people who live in areas located near to aerodromes would be subjected to, having regard to the fac: that there is provided an extensive buffer area between the take-off point and the angle of climb of the aircraft.
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– My question is directed to you, Mr. President. Can you inform the Senate how many copies of the booklet entitled “ The Parliament of the Commonwealth of Australia “, which is available at ls. a copy to visitors to Parliament House, have been sold since its first publication in 1957? Do you feel that the experiment has been successful? Is it intended to maintain the booklet in publication?
– Up to date 47,500 copies of the booklet have been sold. In view of the fact that the original issue of 50,000 copies has been practically exhausted in a little over two years, I consider that the experiment was most successful. In addition to sales at the main entrance to the House, requests by mail are continually received from individuals, schools and other organizations for copies of this informative book on the Parliament. The booklet, with new amendments to bring it up to date, is at present being reprinted, and a further 50,000 copies have been ordered from the Government Printer.
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– I desire to ask a question of the Minister representing the Minister for External Affairs and/ or the Attorney-General. Is the Minister aware that the proposed renewal of diplomatic relations with the Soviet Union has occasioned concern among many Australians, particularly in view of the Government’s failure to take any action over the past three years to remedy deficiencies in the law relating to espionage in peacetime, which deficiencies were pointed out in the report of the Royal Commission on Espionage as long ago as October 1955? Does the Minister realize that the Government’s failure to remedy these deficiencies in the espionage law, combined with its decision to accept Soviet representatives in this country without essential legal provisions to deal with espionage, can only strengthen the doubts expressed in some quarters as to the Government’s sincerity in the Petrov case?
– 1 should prefer the honorable senator to put the question on the notice-paper. I have only the statement that was made by my colleague, Mr. Casey, after the discussion which occurred in Queensland, together with a typescript of the proceedings of the press conference that was held immediately afterwards. As the question the honorable senator asks ranges a bit further afield, I should prefer Mr. Casey to give an answer to it himself.
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– Can the Minister representing the Postmaster-General give an assurance to the Senate that there will be no monopoly on the part of city television companies when television is extended to the country districts of New South Wales?
– The extension of television to the country districts of New South Wales has been under consideration by the Postmaster-General for some time past, but I understand that no definite decision has been made up to the present. He has stated that he is preparing a detailed submission on the matter to put before Cabinet. I can assure the honorable senator that it is not the policy of the Government to create a monopoly in television: rather is it just the reverse. I explained that when this matter was brought up last week.
The Government will continue to observe the provisions of the Broadcasting and Television Act, which stipulate that a company shall hold only two stations - one in a capital city and one in the country. I point out to the Senate that the act provides for the granting of licences only after applications have been invited in the “ Gazette “ and those applications have been referred to the Australian Broadcasting Control Board for its recommendations. The board is obliged to hold a public inquiry before making any recommendations. If the Government decides that licences shall be issued for country towns, the provisions of the act will be fully complied with.
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– I address the following questions to the Minister for Customs and Excise. Has the Department of Customs and Excise completed the movement of those sections of its staff that are to occupy offices in the new Commonwealth administrative building in Perth? Has the Minister received any advice from the Customs and Shipping Agents Association that some sections which he undertook would remain at Fremantle have been moved to Perth? If those sections have been moved, can he inform me what action he is taking?
– I do not think that the movement of the relevant sections into the new building in Perth is quite completed: it is taking place at the present time. I think that perhaps one or two of the smaller sections that are of great interest to the customs and shipping agents have been shifted to Perth. When I was there in 1957, I gave an undertaking that those sections which were of interest to the customs and shipping agents, because they had their offices around the Customs House at Fremantle, would remain at Fremantle. By doing that, we were able to give up one floor of the new building in Perth to other departments.
I have asked the Comptroller-General, who will go to Perth immediately after the Easter break, to inquire into this matter and to meet the customs and shipping agents there. I have also asked him to investigate whether any sections that are of interest to shipping and customs agents have been transferred to Perth, and, if necessary, to see that they are returned to Fremantle.
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– I ask the Minister representing the Minister for Labour and National Service whether his colleague has considered the report and recommendations of the Senate select committee on the matter of indemnity payments by shipowners to maritime unions. If he has, does he propose to make a statement to the Parliament concerning the report and recommendations? If he does, when does he expect to do so?
– The Minister for Labour and National Service has considered the report of the Senate committee on indemnity payments to maritime unions. If the honorable senator places his question on the notice-paper, no doubt the Minister for Labour and National Service will state when, or if, he proposes to make a public statement.
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– My question is directed to you, Mr. President, in view of your enthusiastic support for a suitable building for Parliament House in Canberra. Is it the intention of the Government to make a start on a permanent Parliament House in Canberra in the near future, or at least to push ahead with plans for it? Is it intended to build this important national building on the hill which at present rises directly in front of the temporary Parliament House, or is it intended to remove the hill and build on a less commanding position at a lower level? If this latter suggestion is not correct, will you inform the Senate of the reasons for the continuing intense earth-moving activities that are at present being carried out on that site and have been for some time past? Will you take steps to have the relief model of the proposed Canberra development scheme, now being exhibited in an inconspicuous place downstairs in the Australian War Memorial, brought to King’s Hall, along with a map of the city, so that members of the Parliament may study the proposals in detail when the Parliament resumes after Easter?
– I am sorry, Senator Buttfield, but I think that that question should have been directed to one of the Ministers, lt is quite outside the range of my functions to comment on the matters that you have raised.
– May I address the question to the Minister representing the Minister for the interior, and place it on the notice-paper?
– Yes.
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– On 25th February last, I asked a question of the Leader of the Government in the Senate as to whether Dr. Metcalf ‘s report on the National Library was to be made available. I understand that, within a few days, Canberra’s building programme to cover the next five years will be completed. As that report may be of vital importance to the National Library, could the Minister give a reply before the Parliament rises for Easter?
– I do not remember the question being on the notice-paper. I shall see whether it is possible to obtain a reply to it before Easter. If it is not possible to do so, I shall have the question answered as soon as practicable after Easter.
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– I direct a question to the Minister for National Development, following that asked by Senator Amour in respect of housing in Australia. As elections in two States are projected for Saturday next, the question is non-political. Has the Minister been advised of a recent statement by the Western Australian Minister for Housing to the effect that at present there is no housing problem in Western Australia? Can the Minister say whether, if that is so, the position has been brought about by a reduction of the intake of migrants by that State from 14 per cent, of the total Australian migrant intake in 1953 to 4 per cent, in 1958, or is it because of an act known as the Unfair Trading and Profit Control Act, which has resulted in the diversion to other States of many millions of pounds from overseas sources which might have gone to Western Australia?
– I have noticed comments made from time to time by the Western Australian Minister for Housing to the effect that, as a result of the generous finance made available by the Commonwealth Government, the back of the housing shortage in Western Australia has been broken. I have always commended to the New South Wales Labour party that it should give careful consideration to those statements and emulate that progress in overtaking its housing lag.
As to the other two factors that the honorable senator mentioned, namely, the fall in the intake of migrants and the effect of the operation of the Unfair Trading and Profit Control Act in Western Australia, I am sorry to say that they are not within my knowledge. But I have no doubt at all that Western Australia would prosper to a much greater degree, as would New South Wales, from a change of government.
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– To get away from pending State elections for a moment, I should like to address a question to the Minister for Shipping and Transport about another matter. In view of the fact that the annual report on the Commonwealth Railways for the year 1957-58 shows that there was a loss on the North Australia line of £76,000, excluding interest of £73,000, and that on the Australian Capital Territory line of 4 miles 75 chains there was a lo’Ss of £21,000, excluding interest of £1,300, has the Minister decided to close either or both of these lines? Does he consider that their value to the national interest warrants their continued operation?
– I hasten to assure Senator Marriott that I have never at any time given any thought to the closure of the North Australia railway, which is a very important line. True it is that it operates at a loss, and true it is that it does not carry this interest charge. It is also true that the operations of the line are kept under the most careful scrutiny and quite regularly - as recently as six months ago - changes were made in the schedules to cut down the loss while continuing to meet the requirements of the people it serves. Notwithstanding that a loss is made on this line, as it is regarded in its developmental aspect as of great importance, it will be retained.
The rather short line of something under 5 miles in the Australian Capital Territory falls into rather a different category, and the loss of £21,000 each year, plus interest charges, has to be regarded seriously. Notwithstanding that, however, my own thoughts on the matter are that with the increasing business that is coming to Canberra there is always the prospect that the finances of this line might improve, and I also have in the back of my mind the thought that a line should be maintained to serve the capital city in the Australian Capital Territory.
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– I preface a question to the Minister for National Development by saying that, when referring to the housing lag in Australia, he has quoted departmental figures to support his contention that there is a shortage of 80,000 houses. In view of the fact that these departmental figures have been consistently wrong over the last few years, will he now discontinue using them? Is he prepared to turn to some other source to obtain the real figure of the shortage of housing in Australia?
– I can only dispute the honorable senator’s statement that the figures have been consistently wrong. The document from which they are quoted was prepared by the department after a survey of all the statistics that were available. The document gives reasons in support of the logic that was used in computing the shortage. It has been distributed pretty widely throughout Australia; it has gone to all the housing authorities. I notice that the housing authorities themselves utilize the figures in their own publications. 1 notice, too, that other public people who analyse and comment upon the housing situation turn to that report for the information. The report was the result of an original piece of research work. I do not know that it has been challenged, nor do I know of any other source of information to which one can turn.
– Professor Copland, for one, has challenged it.
– I have refrained from using Professor Copland’s name. He uses the figures contained in the report.
– But he obtains different results.
– He does not. He takes the figures from the report and uses them in his published statements.
– Are his conclusions wrong then?
– 1 can only answer the honorable senator’s question by stating the exact position. The report is quite a useful piece of work.
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– Has the Minister for Civil Aviation any information as to when the new instrument landing system is likely to be installed at the Eagle Farm airport, Brisbane?
– No, I have not any accurate information at the moment, but I shall ascertain the position and inform the honorable senator as soon as possible.
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– My question to the Minister for National Development follows an answer which he gave to a question put to him recently regarding the implementation of legislation introduced by the very efficient Minister for Housing in Western Australia, Mr. Graham, designed to restrict unfair trading practices which were considered to be a major factor in the housing problem in that State. Will the Minister consider means for extending that legislation to other States of the Commonwealth which are experiencing great difficulty in solving their housing problems?
– The two honorable senators from Western Australia do not appear to me to be operating on the same wave-length. 1 understood the question addressed to me in this election week to contain the suggestion that the solution of the housing problem in Western Australia had been assisted by a fall in population due to this unpopular legislation. Before the honorable senator asks the other States to adopt that policy, 1 think she had better argue the case at first hand.
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asked the Minister representing the Attorney-General, upon notice -
Does the volume of Commonwealth court business in Queensland warrant the acquisition of a site in Brisbane suitable for the construction or premises in which the various courts could be appropriately accommodated? If so, would the Attorney-General have examined the locality in Brisbane in which the Queensland Government proposes to erect accommodation for its Main Roads Department in order to see whether a satisfactory site could be acquired in or adjacent to if.’
– The AttorneyGeneral has supplied the following answer: -
The volume oE Commonwealth court business in Queensland would not, at this stage, justify the acquisition of a site suitable for the erection of a building to accommodate Commonwealth courts which hold sittings in Brisbane. The High Court, the Commonwealth Industrial Court and the Commonwealth Conciliation and Arbitration Commission held sittings in Brisbane on six days in 1957 and on sixteen days in 1958. The Federal Court of Bankruptcy does not normally hold sittings in Brisbane, jurisdiction in bankruptcy being exercised by the Supreme Court of the State. The Attorney-General wi”, however, keep in mind the point raised by the honorable senator.
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asked the Minister representing the Minister for Health, upon notice -
– The Minister for Health has now furnished the following replies: -
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asked the Minister for National Development, upon notice -
– -The answers to the honorable senator’s questions are as follows: -
Note. - The tonnages referred to in all cases are short tons of 2,000 lb.
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asked the Minister representing the Postmaster-General, upon notice -
– The Postmaster-General has supplied the following answers: -
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The Minister for the Interior has now furnished the following information: -
The text of “ Your Guide to Canberra “ is revised before each re-printing. Errata slips will be obtained for insertion in unsold stocks of the publication to correct an error at page 39 relating to rail services to Melbourne. Any inconvenience caused to visitors by this error is very much regretted.
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Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Spooner) read a first time.
– I move -
That the bill be now read a second time.
I am sorry that copies of my speech are not available for honorable senators, but they will be distributed before eight o’clock to-night. Some alterations were made to the draft at the last minute and it was not possible to have copies roneoed in time if we were to get the bill on the business paper in the order I desired.
This bill proposes, firstly, that the existing liability limit and capital of the Export Payments Insurance Corporation be doubled to enable it to meet the growing demands from Australian exporters for its services. It also proposes a minor drafting amendment to that section of the principal act dealing with conditions of employment.
The Export Payments Insurance Corporation was established by the government in 1956 to enable Australian exporters to insure against risk of loss arising from nonpayment of their overseas accounts. As this facility is not provided by commercial insurance companies, it represented a new aid to the Australian exporter. Since the Commonwealth is, in the last resort, responsible for any losses of the corporation it was necessary to stipulate in the principal act a maximum liability figure. This was set at £25,000,000. It was also necessary to provide adequate workingcapital for the corporation. This figure was set at £500,000. The corporation is charged to conduct its business on a commercial basis. The value of business already insured by the corporation is clear evidence of the important role it has assumed in the expansion of Australian exports.
In the ten months from September, 1957, to June, 1958, the corporation wrote over £11,000,000 worth of business involving exports to 64 countries. In the following six months the corporation wrote a further £12,000,000 of new business. Not only have the value and number of policies increased significantly but the corporation has covered the widest range of Australian export commodities both primary and secondary. These include wool, both greasy and processed, meat, butter, canned food stuffs, metals, plastics, earth-moving equipment, as well as a variety of other manufactured goods.
In recent weeks, the volume of business available to the corporation has reached the level where the existing liability limit as specified in the act is already inadequate. Unless it is raised there is every indication that the corporation will be unable to continue to accommodate the volume of business offered to it. The bill has provision therefore to double the existing maximum liability figure in section 28 of the act from £25,000,000 to £50,000,000.
Before deciding on this new figure, the Government carefully considered what were likely to be the future requirements of the corporation. We arrived at this figure of £50,000,000 not only after an examination of the corporation’s trading position but also after considering the advice on this matter given by the consultative council of the corporation and the recently formed Export Development Council. These bodies unanimously recommended a level of £50,000,000, and this confirmed the Government’s own assessment of what appeared to be a reasonable figure.
At the present time, export business valued at £52,000,000 is covered or is under negotiation by the corporation. The current contingent liability resulting from this business is over £24,000,000. The adequacy of the liability limit will be kept under review by the Government to ensure that the needs of the Australian exporter for this facility are fully met.
The bill also includes an amendment of section 23 (1.) of the act to enable the capital of the corporation to be doubled to £1,000,000. The capital of an organization of this type is used as a revolving fund. Normally it can expect to have large sums of money either paid to exporters, or earmarked to be paid to them, as a result of claims made. The corporation would normally expect, in time, to recover from overseas much of the money involved, but months, perhaps years, may elapse before such amounts are recovered. It is necessary then for the corporation to have sufficient capital to cover this ebb and flow of moneys.
The alternative would be to give the corporation inadequate capital and then have it either - (a) borrow the money from Treasury as the need arises; or (b) return to Parliament for more money when the existing capital is exhausted. Neither method would enhance the stature of the corporation and could lead to delays in the settlement of exporters’ claims.
The better, and normal, procedure is to provide the corporation from the outset with sufficient capital to perform the function for which it was created. It is because substantial sums may have to be carried by the corporation rather than by exporters, because of events outside their control, that only governments are prepared and able to provide this form of insurance. The capital figure of the Australian scheme is in no way excessive when compared with overseas organizations in this field. The Canadian scheme, for example, has, pro rata, several times the capital of the Australian corporation.
The fact that the Australian scheme, which has been operating only eighteen months, has not yet had any substantial demands made on its capital does not mean that these fortuitous circumstances can be expected to continue in the future. The corporation has in fact earmarked some thousands of its money for future settlement of claims now notified by exporters. In the future, the corporation must expect to have a more normal claims experience, and, as the move to raise the liability limit will enable more business to be handled by the corporation, it is prudent that capital should be .provided to match this new business.
A further, but less important, reason is the fact that the corporation will be involved in additional expenditure in preparing for the new business which will be open to it to seek. This expenditure takes two forms. First, additional information is required from overseas about both countries and customers in anticipation of business which will be brought to it. Secondly, the staff in Australia will have to be increased, not only on the administrative and technical sides, but also in the promotional field. The majority of exporters or potential exporters are not yet fully aware of the extent to which the Export Payments Insurance Corporation can enable them to quote on more competitive terms in overseas markets, by removing risks which they must otherwise allow for in their costing. Ultimately, this increased expenditure should be met from increased premium incomes resulting from the new business acquired. But in the present circumstances this will not begin to be received until after the expenditure has been incurred.
Finally, the need for the increase has been carefully examined by both the Consultative Council of the corporation and by the Export Development Council, both of whom have recommended to the Minister for Trade that this increase was both necessary and desirable to enable the corporation to continue to operate on a commercial basis.
The third amendment proposed, that to section 18(3.), is purely a drafting change designed to clarify the wording of the principal act in relation to terms and conditions of employment.
Last financial year the corporation was able to show an operating surplus of £4,000. It is the objective of the corporation to be self-supporting and in the long term to show neither profit nor loss. That such excellent results should be obtained during the corporation’s formative period holds great promise for its future activity. The arrangements proposed should enable the corporation fully to keep pace with the demands for its services. I commend the bill to the Senate.
Debate (on motion by Senator McKenna) adjourned.
Sitting suspended from 3.59 to 8 p.m.
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– As chairman, I bring up and lay on the table of the Senate the fourteenth report of the Regulations and Ordinances Committee. The report reads as follows: -
The Standing Committee on Regulations and Ordinances has the honour to present its fourteenth report to the Senate.
The committee has considered regulationmaking powers contained in the Civil Aviation (Carriers’ Liability) Bill 1959, which, at the date of this report, is before the Senate for consideration. The clauses of the bill to which the committee has given its serious consideration are clauses 40 and 41.
Having in mind the proper limits of delegated legislation, the committee has reached the following conclusions: -
Clause 40: In the opinion of the committee, clause 40 purports to enable, by regulation, the modification of clause 31, a key clause of Part IV. of the bill, and that this is not a matter of administrative detail but substantive legislation, appropriate only to parliamentary enactment. In the opinion of the committee, clause 31 is a most important clause of Part IV., and it should not be permissible to use regulations to modify Parliament’s will in that respect.
Clause 41: In the opinion of the committee, clause 41 does not concern itself with power to make regulations dealing with administrative detail, but gives power to enact regulations which amount to substantive legislation, appropriate to Parliament.
I move -
That the report be printed.
I ask for leave to continue my remarks at a later stage.
The CHAIRMAN (Senator the Hon. A. D. Reid). - Is leave granted?
– No.
– Leave is not granted.
– I rise to a point of order. I refer to Standing Order 36a, which relates to the Standing Committee on Regulations and Ordinances. Paragraph (1.) reads -
A Standing Committee, to be called the Standing Committee on Regulations and Ordinances, shall be appointed at the commencement of each Session.
Then follow paragraphs (2.) and (3.), which are not relevant. Paragraph (4.) reads -
All Regulations and Ordinances laid on the Table of the Senate shall stand referred to such Committee for consideration and, if necessary, report thereon. Any action necessary, arising from a report of the Committee, shall be taken in the Senate on motion after notice.
I submit that the functions of the committee are to report on regulations and ordinances laid on the table of the Senate. No regulations or ordinances arising from the bill under discussion have in fact been made or laid on the table of the Senate. I suggest that Senator Wood is out of order.
– Speaking to the point of order, I submit that the select committee’s report in which the establishment of the Regulations and Ordinances Committee was first recommended, the subsequent proceedings in the Senate, and the second report should be perused at length by the Minister before he denies that it is within the functions of the Regulations and Ordinances Committee to report upon the proper scope of clauses in a bill giving power to make regulations. I submit that the question whether the subject-matter of the report is within the authorization of the committee is not a question of order, but a question of substance to be debated on its merits when the motion for the printing of the report is debated. In all conscience, Mr. President, I ask the Senate not to deny the authority to which the Minister objects, just on a point of order, but to consider it as a matter of substantive procedure. I ask the Senate to take this report into account and consider it in a proper manner on the basis of motion that the report be printed.
The report is submitted at this stage so that the subject-matter of it will be before the Senate. The Regulations and Ordinances Committee thinks that it discharges the duty entrusted to it by submitting this report, giving its opinion, in timely fashion, at a time when the bill is under consideration by the Senate. In terms of the report of the select committee which was responsible for setting up the Regulations and Ordinances Committee, the Regulations and Ordinances Committee can take, not merely corrective action, but preventive action for the information and consideration of the Senate. I hope that the Senate will proceed in the spirit of seeking the utmost consideration of and debate upon the fundamental principles involved in clauses 40 and 41 of the bill, and that points of order will not be used as a means to preclude us from complete deliberation of those principles.
– I support the point of order. T also support Senator Wright’s expressed wish that full deliberation and discussion will not be thwarted merely by taking a point of order. However, there is a time and a place for everything. The proper procedure, as contemplated by the Standing Order, is for this committee to meet and then to consider and report on all regulations and ordinances laid on the table of the Senate. We have no assurance at present that these clauses referred to in the report - clauses 40 and 41 - will, in fact, be passed. The proper place for them to be considered and adjudicated upon surely is in the committee of the whole of the Senate, not in the Regulations and Ordinances Committee.
We will shortly constitute ourselves a committee of the whole of the Senate. That is the place to determine whether clauses 40 and 41 should be passed. That determination is not the province of the Regulations and Ordinances Committee; it is the function of the committee of the whole of the Senate. If in the fullness of time these clauses are passed and regulations are made under them, I trust that the Regulations and Ordinances Committee will most carefully scrutinize these regulations, but I think the committee is rather anticipating its function in dealing with clauses that are under consideration by a committee of the whole of the Senate and giving a forewarning. Let that be done by all means, but in a committee of the whole of the Senate. Later, if obnoxious regulations are made under those clauses, I trust that the committee will bring them to the notice of the Senate, where they can be dealt with.
– Mr. President, you were not in the Senate when this matter arose. Perhaps I should take a moment to point out to you that Senator Wood brought up a report of the Regulations and Ordinances Committee commenting upon clauses 40 and 41 of the bill which is immediately before the Senate. He has moved that the paper be printed. The Minister for Civil Aviation (Senator Paltridge) has taken a point or order, relying upon paragraph (4.) of Standing Order 36a. I think I present his argument accurately when I say that he contends that the power conferred by paragraph (4.) of that Standing Order is exclusive and that the one function of the committee is to concern itself with regulations and ordinances that have in fact been passed.
That viewpoint has been opposed by Senator Wright and supported by Senator Sir Neil O’sullivan. I join in opposition to the point of order. I put the argument that paragraph (4.) of Standing Order 36a is not intended to be exclusive. It reads -
AH Regulations and Ordinances laid on the Table of the Senate shall stand referred to such Committee for consideration and, if necessary, report thereon.
In the view I submit, that does not purport to be the exclusive function of the committee. In fact, from time to time the Senate has taken quite the contrary view. We have had many reports from the Standing Committee on Regulations and Ordinances which set out the principles upon which it approaches its task. Those principles have been debated and affirmed by the Senate. If the committee was concerned solely with dealing with particular regulations referred to it under Standing
Order 36a (4.), it would have no right to be affirming sets of principles for the future guidance of the legislature. 1 submit that it would be rather against common sense to say to the committee, “ You may approach the matter of regulations and ordinances only after damage has been done by their being put through in some obnoxious form “. As the Senate well knows, a regulation becomes operative the moment it is promulgated and, although it is subject to scrutiny by the standing committe and is subject to disallowance by either House of the Parliament, very many months may elapse during which the regulation would be effective. The regulation may be one that is lacking in power or which offends against all the principles that have been laid down by the committee. I think it is against plain common sense to say to the committee, which derives its title and functions from its name - the Standing Committee on Regulations and Ordinances, expressed in very general terms - that it is hidebound and has to confine its attention only to regulations and ordinances that have in fact become operative.
So, on those grounds, I support Senator Wright in his opposition to the point of order. I summarize them as follows: First, Standing Order 36a (4.) is not exclusive; secondly, it is plainly against common sense to hold otherwise; and, thirdly, I point to the many occasions upon which the committee has affirmed the principles upon which it functions. I submit that, if the committee was confined merely to consideration of regulations and ordinances that came before it, it was out of order, with the full concurrence of the Senate, in laying down general principles. T repeat that for those reasons I oppose the point of order.
– I support the point of order that has been taken by my colleague, the Minister for Civil Aviation (Senator Paltridge). I refer . in particular to Senator McKenna’s comment that the Standing Committee of Regulations and Ordinances proceeds in accordance with principles and procedures that are laid down by the committee itself. I remind the honorable senator that those principles and procedures are set out in the fourth report of the committee. In fact, I think they have been set out in more than one report of the committee, but this proposal came before us at short notice and I have not had the time to go through all the reports of the committee in the way in which I should like to have gone through them. 1 said that the committee itself, in its fourth report, set down the principles upon which it operates. To my recollection, those principles have stood the test of years; they have not been departed from. The principles that the committee adopted as its guiding stars were as follows: That it would scrutinize regulations to ascertain whether they were in accordance with the statute; that the regulations did not trespass unduly on personal rights, and liberties; that they did not unduly make the rights and liberties of citizens dependent upon administrative and not upon judicial decision; that they were concerned with administrative detail and did not amount to substantive legislation which should be a matter for parliamentary enactment.
I do not discern in those principles or in practice any proposal that the committee has what might be called an anticipatory power - that it can anticipate what the Senate will do or what its decision will be, and proceed to examine and scrutinize in advance something which may or may not happen. In other words, it seems to me to be quite contrary to what the Leader of the Opposition (Senator McKenna) says, and quite contrary to good sense and orderly procedure, that a committee should proceed to present a report upon a bill before the Senate without knowing whether that bill will be translated into an act. I can see no alternative, in orderly procedure, to the committee’s having to wait until such time as the legislation is passed and the regulations are made. Who is to say whether, when the regulations are enacted, they will offend against the principles which guide the committee in its examination? It may well be that, the committee even though it does not like the terms of the legislation, will say, when the regulations are drafted, passed by the Executive Council and tabled in the Senate, “ There is nothing in these regulations to which we take any objection “. It seems to me to be wrong in principle and in practice for a committee of the Senate to interrupt deliberations upon a bill and object to something which, when it comes to fruition, may not in any sense be objectionable to the committee or the Senate.
– Mr. President, will you ask the Clerk to read the terms of the point of order?
– I shall restate them. The terms of the point of order were that the motion for the printing of the paper was out of order. I based the objection on paragraphs (1.) and (4.) of Standing Order 36a. Paragraph (4.) reads, in part -
All Regulations and Ordinances laid on the Table of the Senate shall stand referred to such Committee for consideration and, if necessary, report thereon.
– Mr. President, we have had only what I term partial argument on the point of order. The Standing Committee on Regulations and Ordinances is based on the procedures of the British House of Commons. In the House of Commons, in regard to certain regulations quite the reverse procedure is followed to that which is followed here. Regulations do not take effect until fifteen sitting days after they are laid on the table of the House of Commons. Here, regulations become effective immediately, but may be disallowed by either House within fifteen sitting days after they have been laid on the table. So it will be seen that we have had only a partial stating of the case to-night.
What the committee is trying to do is to draw its power and inspiration from the Mother of Parliaments, and to put the machinery in motion to prevent regulations from becoming operative before we have had a chance to do anything about them. The point has been taken on this occasion because the whole crux of the matter is that the provision in the bill relating to the payment of £7,500 compensation commences with the words “ Subject to regulation “. Instead of making the relative provision one of legislative enactment, the Senate is asked to make it the subject of regulatory power which, of course, takes it completely out of the hands of the Parliament. I think that a narrow view has been taken. Because of the nature of the Senate as a States’ House, the whole of our proceedings should be based on wide terms. You yourself, Mr. President, during the years that you have been in the chair, have always taken a very wide view, particularly in regard to debates and matters of interpretation.
As Senator Wright has pointed out, when the Regulations and Ordinances Committee was originally set up, it was given- power to take preventive action. The only way in which preventive action can be taken is for the committee to do exactly what it has done on this occasion. When Senator Paltridge was asked to restate his case, he said that he based it on Standing Order 36a. 1 suggest that he would have been more truthful if he had stated that he based it on a part of that standing order. He said before that he based his argument on paragraph (1.), but of course he did not. Paragraph (3.) provides that the committtee shall have power to send for persons, papers and records. The paper that it has sent for on this occasion is the bill that is before the Senate. We have sent for that paper and we have examined it.
We are alarmed at the excessive regulatory powers that the Government is attempting to write into the Statute Book. We suggest - and this is the very point that Senator Spooner made - that substantive legislation is being by-passed and that the Government is trying to use the regulatory power to take the place of the head of power under which we work. Instead of using substantive legislation, the Government is using the regulation-making power. I do not think that there is any shadow of doubt that that is being done. We are entitled under paragraph (3.) of Standing Order 36a to send for papers. We have done that. After due deliberation, we have presented a report to warn the Senate so that it may take action before the damage is done, before it passes a bill which would allow an undue use of the regulation-making power.
– I might or might not like the provisions of clause 41 of this bill, but that is not in issue at the moment. I hope that the very enthusiastic members of the Regulations and Ordinances Committee, of which I was once a member, do not make it the issue. After all, we are only debating a point of order relating to a motion by Senator Wood in regard to the deliberations of the Regulations and Ordinances Committee, and that point of order rests on Standing Order 36a. My submission, briefly, is that the powers of the Regulations and Ordinances Committee flow exclusively from Standing Order 36a. The committee cannot take unto itself additional power. In this case, I suggest that it is anticipating an act of this Parliament and taking objection to it. In effect, it is saying, “ Clause 4 1 of the bill contains something that we do not like, and, as the Regulations and Ordinances Committee, we object to it and ask that that objection be noted by this Parliament and debated “. f think that the committee is far exceeding its powers, as denned by the Standing Orders. The only power that the committee h?s is contained in Standing Order 36a, which gives it very wide power over regulations and ordinances that have been properly tabled.
In this case, no regulation has been tabled. I suggest that the Regulations and Ordinances Committee is endeavouring to take over the powers of the Parliament relative to a clause of this bill. The committee should wait until regulations are properly promulgated. Then by all means let us have a debate on the merits of the regulations and on whether they are properly worded, whether they are proper for delegated legislation, to use Senator Wood’s expression, and whether, in fact, regulations should be made at all under clause 41 of the proposed legislation.
I have very often objected to delegated legislation and to the Ministry taking over the power of the Parliament per medium of delegated legislation. That is something that is always apt to creep into our laws. But, Sir. I also object to any section of this Parliament - in this instance it happens to be a committee of the Parliament - taking unto itself the powers of the Parliament. The power of the Parliament in this case is quite clear. We have already before us a clause of a bill. No committee, including those of the Mother of Parliaments, on whose procedure Senator Willesee rested his Argument. has the right to take from a parliament the power to pass a clause. T stand on that argument because T feel that it is a most important one. Important rs the Regulations and Ordinances Committee is. and important as its work is, it has no right to supersede the powers of Parliament. I therefore support the point of order raised by Senator Paltridge.
– The debate on the point of order to this stage has revolved around the merits of the committee and its right to make such a report. To that extent, the debate has not been oriented in the correct direction. The motion before the Senate is one for the printing of the report, on which the Minister has taken a point of order to the effect that the motion is out of order. Let us have a look at the Standing Orders that are particularly directed to the tabling of reports and the moving of such motions. When those are looked at, I think that the Senate will come to the conclusion that, regardless of the substantive merits or demerits of the report of the committee, or of its right to make such a report in the present circumstances, at least there is ground for the presentation of the report followed by the motion that has been moved.
I direct the attention of the Senate to Standing Order 67, which states -
Papers, Returns, and Reports of Select Committees, may be presented by Senators in their places at any time when other Business is not before the Senate.
That Standing Order has been complied with. When the report was presented there was no other business before the Senate. Now, I turn to Standing Order 365, which provides -
On any Paper being laid before the Senate, it shall be in order to move - (1) That it be read, and. if necessary, a day appointed for its consideration: (2) That it be printed.
I should say that that Standing Order is clear to the point of being mandatory. Whether the report is within the competence of the person who presents it, is not a subject to be discussed at that stage. Therefore, I think that a point of order taken in these circumstances is in violation of Standing Orders 67 and 365.
If the report of the committee is, in the opinion of anybody, beyond the powers of the committee, then at another stage an.i in other circumstances, the Senate may decide accordingly, but at this stage it virtually has no option - the report having been presented and the motion having been moved for its printing - but to print it in terms of Standing Order 365. On the substantive merits of the report, I agree with the submission of Senator McKenna that the Standing Order concerned is not exclusive in its terms. It refers not only to actual regulations that at the time it is within the competence of the Senate to disallow, but even to regulations that have been tabled years and years before.
– But there are no regulations.
– I am referring to the position in ordinary circumstances. Leave the matter in dispute out of it for a moment. At least all regulations which are within the period of time during which the Senate can disallow regulations, are referred to the committee. But, beyond that, all regulations at any time passed by this Senate stand constantly referred to the committee. In other words, the committee has a very greatly extended power and competence. I think that, quite contrary to what Senator Vincent submits, this chamber is not trying to derogate from the powers of the Parliament but is trying to assist the Parliament in the exercise of its own powers. If you look at the report of the committee you will see that it does not purport to attract any authority to itself. The committee merely draws the attention of this chamber to what it considers to be its powers and to certain dangers inherent in matters before the Senate. It suggests a certain course of action to the Senate in the process of its debate. Quite contrary to that being a derogation of the powers of the Senate, I think it is obviously ancillary to it and for its comfort, solace and assistance. Therefore, the Senate at this stage, rather than resenting the intrusion of the committee, should welcome the interest and the attention that have been given in this narrow but important field by the deliberations of an expert and experienced committee which has chosen to draw the attention of the Senate during the passage of a bill to things that it thinks are inherently dangerous. The committee has done so rather than allow the Parliament to proceed, and allow regulations to be made in pursuance of the bill as it stands, when it becomes an act. The committee has shown a red light to the Senate and asked it to halt and consider the position in the light of the experience of the committee.
So T say that, in terms of the Standing Orders, the point of order taken by the Minister cannot be sustained, that the substantive merits and the rights of the committee to present this report and its contents is not in issue. The motion is for the printing of the paper, and in terms of Standing Order 365 we have no option but to decide that question irrespective of the contents of the report. On the other matter, that is within the competence of the committee, and in exercising that competence it is acting in an assistance to the Senate.
– I have listened to Senator Byrne with a great deal of interest, because he repeatedly referred to a report of the Regulations and Ordinances Committee. Sir, there cannot be a report of a committee when it is acting outside of its terms of reference. The terms of reference of the committee provide for it to report to the Senate on regulations. But no regulations have been made under this bill for the committee to consider and report upon. Therefore, it cannot be taken as a report of the committee. The Senate cannot order that a report be printed if that report has no right to be here. It is completely outside the terms of reference of the committee for it to report on something that is not in existence. Those are the complete facts of the matter. I direct the attention of he Senate to Standing Order 125, which provides -
No Motion or Amendment shall anticipate an Order of the Day or another Motion of which Notice has been given.
This is clearly an anticipation of matters that are to be met. I submit that it is completely outside the committee’s right to make a report on this matter, and I submit further that this committee is attempting to take the powers of the Parliament to itself and even to override them.
– I do not agree with that.
– I did not agree with Senator Byrne when he was speaking, but I did not interrupt him. I submit that the position is that this committee is trying to take. to itself the powers of the Parliament. It is a committee set up to examine and report to the Parliament upon regulations and ordinances. There are no regulations under this bill, because the bill has not yet been passed by the Parliament. Therefore, there is no substance whatever in Senator Byrne’s contention. We cannot accept this report. The committee is going outside its terms of reference, and I submit that the point of order should be upheld.
– The Minister for National Development (Senator Spooner) has submitted that the motion for the printing of the report is out of order. Divers arguments have been placed before the Senate as to whether or not it was in order for the committee to furnish the report. I submit that there is no substance in the point of order, and I remind the Senate that the Regulations and Ordinances Committee was appointed as a result of reports and recommendations for the appointment of such a committee that were brought down by two special committees of the Senate. It was provided that the Regulations and Ordinances Committee should examine acts, bills and regulations and take preventive action in the case of any attempt being made to take from this Parliament its right to introduce substantive legislation. The committee has power to examine regulations made under an act of this Parliament and to submit a report to this chamber, so that corrective action can be taken.
– This has never been done before in the last 50 years.
– It is never too late to get the system operating as it should operate.
– I amend my interjection. It has not occurred in 58 years.
– The committee was formed in 1932. I thought the Minister was an accountant!
– I point out that the committee has adopted the only method open to it of instituting corrective action to prevent substantive legislation from being evaded, handing over to a regulationmaking authority power which rightly belongs to Parliament.
– There is nothing to correct. It is not law yet.
– Senator Henty makes a fluent but inane interjection. The committee has brought this report before the Senate for its consideration. It is right that it should do so at this time, so that corrective action can be taken in order to prevent the Senate from being placed in a ridiculous position. I point out that administrative regulations cannot be made until substantive legislation is passed, and it is the duty of the committee to see that a regulation is in accordance with the Statute. Therefore, all the talk of this committee trying to abrogate the right of the Senate is so much tommy-rot. The position is exactly the reverse. The committee is reporting to the Senate that if this proposed legislation becomes law the powers of enactment will be handed over to delegated authority and will be taken away from the Senate. We have brought this matter before the Senate at this stage so that if this bill becomes law, we will not be faced with the need to examine the regulations at a later stage and recommend their rejection. The Senate is being given the opportunity to discuss now a position which will become more difficult to handle in the future when, as I have said, if the proposed legislation in its present form becomes law, the committee will be faced with the duty of recommending the rejection of certain regulations. The committee should be able now to examine, within the framework of the bill, the regulations and ordinances necessary to carry out the expressed policy of the Parliament. There is no substantive legislation whatever in the provisions of the bill to which the committee has directed its attention. The insertion of these provisions giving power to issue regulations is a complete sell-out to the Executive of the powers and functions of the Parliament.
The committee has submitted a report to show how objectionable and how wrong that practice is. We are asking the Senate, to consider at the appropriate time that very vital principle of democratic legislation. We contend that the obligations and the rights of those who will have to suffer or enjoy this legislation in the future should be clearly defined by substantive legislation and not by regulation. The report of the committee is intended to assist the Senate to operate as it should do - as a house of review.
– Mr. President, I think the matter resolves itself into a question as to whether your predecessor in the chair, the Deputy President, should allow a motion proposed by Senator Wood that a certain paper be printed. Senator Byrne has put his finger on the relevant standing order, Standing Order 365. which is in these terms -
On any Paper being laid before the Senate it shall be in order to move - (1) That it be read, and, if necessary, a day appointed for its consideration; (2) That it be printed.
To my mind you, Mr. President, are competent to allow the motion proposed by Senator Wood. That matter is apart altogether from the contents of the paper.
As to the merits of the paper, it is of importance that the Senate consider some of the history of the appointment of the committee. Standing Order 36a was incorporated in the Standing Orders in 1932 following the report of a select committee which was appointed to consider, report upon and make recommendations as to the advisability or otherwise of establishing standing committees to report upon statutory rules, ordinances and certain other matters. As a result of that comprehensive report, which was presented on 9th April, 1930, the standing order to which I have referred came into being. The following statement appears in paragraph 23 of the report: -
In the opinion of the Committee the work of the proposed Standing Committee on Regulations and Ordinances would be both preventive and corrective. It would be charged with the responsibility of seeing that the clause of each bill conferring a regulation-making power does not confer a legislative power which ought to be exercised by the Parliament itself
The terms of that paragraph make it clear that the proposed committee was to have a preventive as well as a corrective power.
I suggest that the committee, having called for a relevant paper - in this instance the bill itself - should at this stage exercise a preventative power, as it were, and close the stable door before the horse escapes. I consider that this report has merit also. Therefore, I submit that the proposal of the Minister for Civil Aviation is out of order for two reasons, first, having regard to the provisions of Standing Order 365 to which I referred, and, secondly, because the report of the committee is the result of a valid exercise of the power of the committee. The Senate should not accept the Minister’s proposal.
– To clear up this matter I shall return to the motion before the Senate which is that a certain paper be printed. If honorable senators on the Government side will be patient with me, I shall clear the air of this question. The committee has prepared a report for better or for worse. The substance of that report does not concern the Senate at present, but the motion before us is that the paper be printed. If any honorable senator can prove to me that the committee, in the exercise of its proper function, is out of order in presenting a paper when the
Senate has no other business before it, I shall accept that ridiculous position. I say the position is ridiculous because no paper may be presented in this Parliament if any honorable senator says that it is out of order.
The Minister for Civil Aviation has made a mistake in taking a point of order. He had two courses of action open to him, first, to have called for a vote on the motion as to whether the paper should be printed, and secondly, to have proposed a separate motion to the effect that the Senate does not approve the report of the committee. I have now simplified and clarified the whole problem.
There is no shadow of doubt - in fact the Standing Orders provide for it - that the committee may present its report. The point of order taken cannot be sustained but, if the Minister, in exercising his function as the Minister directing the passage of this measure, wished to take any action to prevent the paper being printed, he had open to him the two avenues of procedure I have suggested. I oppose the point of order and support the motion. I suggest that the Senate vote on the question as to whether or not the paper be printed.
– In taking issue with Senator O’Byrne I assume that the Standing Orders are in their present form to enable proper and orderly debate in this chamber, and that they have been formulated in the expectation that honorable senators will comply with their requirements. If that is so, they undoubtedly support the contention of the Minister for Civil Aviation to the effect that it is out of order at this stage - indeed, possibly, at any stage, but certainly at this stage - to move for the printing of the report now before us because it is a report from a committee which, whether it has the power to make a report or not - I think it has not - nevertheless anticipates an order of the day on to-day’s business paper. The report purports to set in motion a debate or to encourage the Senate to arrive at some decision on a portion of the Civil Aviation (Carriers’ Liability) Bill which is listed on the business paper as Order of the Day, No. 1, Government Business. If that is so - and it is so - then the point of order surely must be upheld.
– Speaking as a lay member of the committee, as one who is not a lawyer, I oppose the point of order. I suggest that under Standing Order 365 the report should be received. When it is received, then the question whether that report should be acted upon is a matter for debate.
I should like to point out that during our discussions this morning a good deal of attention was given to the question whether we had power to submit a report at this stage. We members of the committee feel satisfied that we have the power, and that we should be failing in our duty if we did not present the report at this time. The Senate, on the other hand, might not hold that view and, whatever ruling is given, it will be of great value as a guide for the future conduct of the Regulations and Ordinances Committee.
But, irrespective of whether our opinion is right or wrong, I do feel that the report should be admitted under Standing Order 365.
– Let me say, as chairman of the Regulations and Ordinances Committee, that I am amazed at the reaction of some Government senators to this motion. The Regulations and Ordinances Committee is a standing committee of the Senate. One of the objectives of that committee is the preservation of the rights of Parliament against usurpation by the Executive. The committee is constantly working towards ensuring that Parliament, not the Executive, runs Parliament. We hear it said from time to time that control of Parliament is slipping from the hands of the parliamentarians, and that Parliament is being run by the civil servants. This committee is at all times concerned with ensuring that it acts according to the requirements of the Parliament. The essence of the report which the Regulations and Ordinances Committee has submitted to the Senate is emphasis on the fact that in at least two particular cases there will be coming before the Senate legislation which will give the Executive power to make regulations which could override what Parliament has done.
There is nothing personal in this matter. We members of the committee have a high regard for Senator Paltridge. He is a most co-operative Minister. I, as chairman of the Regulations and Ordinances Committee, have interviewed the Minister twice to-day and I was received with the utmost courtesy on each occasion. I repeat that there is nothing personal about the matter. It is a simple parliamentary question. I believe that the Minister will be prepared to accept an amendment that will take away some of the powers that would otherwise go to the Executive.
Again, I must say, in fairness to the Minister, that I believe he is conscious of the necessity for keeping as much power as possible within the hands of Parliament, but we members of the committee take the view that if the legislation which is coming before the Senate is passed in its present form, there is a danger that certain power might drift from Parliament to the executive, and we feel it our duty to draw the attention of the Parliament to that fact. I emphasize that in making that point the Regulations and Ordinances Committee is not trying to run the Parliament.
– Yes it is; undoubtedly it is!
– I must say that before I came to Canberra I had never known such woolly thinking. Some honorable senators seem to be amused, but I am not treating this matter in a jocular vein. I look upon the Senate as a very dignified institution, as an institution that should be held in the highest of esteem by all the people of the Commonwealth. I emphasize that in defending the rights of Parliament we are defending the rights of the highest forum in the country and when I speak as I do I am treating the matter very seriously indeed.
In submitting its report at this stage, the Regulations and Ordinances Committee is acting as custodian of the rights of this Parliament; it is not seeking to take unto itself any of the rights of Parliament. The Senate should be very grateful at having such a vigilant Regulations and Ordinances Committee. I have been a member of that committee since 1949 and I have seen more Government senators than Opposition senators slide from it because they felt that its work was too dry and uninteresting. I am the only one of the Government senators who were on the committee in 1949. In all fairness to the Opposition senators and to Senator Byrne, the Queensland
Labour party’s representative on that committee, I must say that on all occasions the deliberations of that committee have been conducted strictly in accordance with the principles of its establishment - on a nonparty basis. I am certain that every member of the committee works according to the highest ideals of parliamentary practice and I resent any indication by one of my colleagues that the report now submitted is untrue. I point out that the honorable senator who makes the suggestion was at one time a member of this committee, and he got off it.
Speaking on behalf of all members of the committee, and especially for myself, as a layman who has remained on the committee ever since 1949, I can assure honorable senators that its work is not easy. If one is to do one’s job properly as a member of that committee, one must really exercise one’s mind.
I want to make it clear at this stage that the Minister knew that I would be submitting this report to-night if he intended to persist with the Civil Aviation (Carriers’ Liability) Bill as at present drafted. As I said before, there is no conflict between the Minister and the committee.
– Do you not think you are taking power from this Parliament?
– We are not seeking to take away any power; we submit this report so that honorable senators will know the exact position about this business and will not agree to legislation which the committee believes will take power from the Parliament.
– You are taking power from the Parliament.
– I am sorry that it is impossible to make some people see the logic of these things. There is no keener supporter of the Liberal-Country party side of this Senate than I, but I am not so blind as to believe that every amendment suggested is an affront to the Government. That is not my outlook on parliamentary life. I look upon the bigger, basic things in Parliament and the narrow-minded view some of the government senators are taking on this question does not say very much for them.
In my opinion, Senator Byrne took the right point on this matter. Senator Laught indicated quite clearly that before submitting its report the Regulations and Ordinances Committee went into the matter thoroughly, and the fact that it has reported in the way in which it has done is proof positive of the fact that the Senate’s purpose in establishing the committee in the first place was to guard against the taking of power from the Parliament and placing it in the hands of the Executive. Every time the Regulations and Ordinances Committee poses anything there is a suggestion that it seeks to take away the power of the Parliament. When we submitted a report in connexion with import licensing, the same suggestion was made. I say this very clearly: When the Government puts me on a committee to act as a member, I act according to my conscience, as a member of this, the highest parliament in the Commonwealth. I shall always act accordingly and I believe that the committee also acts in that way. It acts in the interest of Parliament, not in its own interest, and if the Government does not think that we are doing the right thing it can put some one else in my job at any time. I know that since 1949, government senators have slid off the committee as quickly as they possibly could do so.
– This appears to me to be a perfectly simple question. We have a committee which has the right and duty to discuss regulations and, if necessary, to advise us to disallow them. I have always heeded - and will always heed - any such report, but this report appears to me to be an attempt to influence a bill that we intend to make a statute. On that ground, I would prefer that the report be withdrawn and I shall either support the point of order or, if that fails, vote against the paper being printed. That is something that I certainly do not want to do because T think that to reject deliberately a motion that a paper be printed would be disastrous to the attempts that some of us are making to have working committees. That is why T regret the motion and would prefer that the chairman of the committee withdrew it altogether.
– While I fully agree with the high ideals expressed to-night by Senator Wood, T would remind him of the fact that he threatens the power of Parliament - the power of this Senate. The committee has taken upon its shoulders the burden of removing the very thing that the honorable senator wishes to uphold - the power of this assembly. I remind him that we have not even passed this bill yet. The things of which he complains are not even in operation, and what he had to say would have been more properly said at the committee stage of the bill. No regulation is yet in operation. How can one ask that a regulation be not allowed when it does not even, exist? With all due respect to the vigilance of the honorable senator, I think that he has gone off before the event. He has anticipated our right to debate this matter in the House and in the committee and I am, therefore, strongly opposed to everything that he had to say on that score.
– I hope that I shall not confuse the matter further, but I think that Senator Byrne has put his finger on the nub of the problem. The Minister is completely out of order, and off the course, in trying, by way of a point of order, to prevent a paper from being printed. The Standing Orders that have been quoted are almost mandatory on the point that the committee must bring down the paper and ask that it be printed. If the Government does not wish the paper to be printed it can vote against that happening. That has been done hundreds of times in this Parliament. However, I appeal to the Minister not to virtually lay down a procedure which will govern the future operation of the Regulations and Ordinances Committee. If the point of order is upheld, that fact will go onto the record and it will be assumed that the Senate has decided that a committee shall have no anticipatory powers. That might be a good thing; it might be a bad thing. Certainly, I think that it is a matter for separate debate and cold, calm decision. I do not think that the upholding of a point of order should be allowed to become a permanent indication that a committee cannot do what has been proposed to-night.
After all, the fact that a paper is printed does not mean that discussion must automatically follow. We have had similar motions on the notice-paper, and they have stayed there for weeks and months. They have not been discussed. Senator Gorton’s suggestion notwithstanding, discussion does not automatically follow the printing of a paper. The approach of the committee should be considered separately - it should be given the right to-night to print the paper, and the Government should discuss the matter of the anticipatory powers of the Regulations and Ordinances Committee in the joint party rooms. After all, the Government can lay down the powers of this committee. I do not wish to confuse honorable senators, but I would suggest that we should keep the larger issue for wider debate at a later stage and treat the question of the printing of the paper as a separate matter.
The PRESIDENT (Senator the Hon. Sir Alister McMullin). - The point of order is upheld.
page 444
In committee: Consideration resumed from 17th March (vide page 424).
Clause 15 (Proceeds of insurance policies, &c).
– Last night I promised to give further consideration to a suggestion by Senator Wright that in assessing damages for death the rule that damages shall be reduced by reference to the benefit accruing to the dependants from the estate of the deceased should be mitigated. I have now given consideration to the matter and I do not feel that I can support the suggestion. As far as I can ascertain, no such provision has been made in the legislation of the United Kingdom or of any Australian State except Tasmania. Tn Tasmania in 1943. a provision was made to the effect that in assessing damages the value of such portion of the estate of the deceased person as passes to members of his family shall not be taken into account except insofar as such value exceeds £2,000. In 1955 that figure was changed to £5,000.
Honorable senators will, I am sure, agree that the Commonwealth would need to be convinced of the merits of the Tasmanian provision before adopting it in the face of the fact that no other State had adopted it, although it had been in force in Tasmania for nearly twenty years. The merit of the provision depends on what it is that the legislature is seeking to compensate. If the theory is the traditional one that the relatives are entitled to be compensated only for their pecuniary loss it is quite logical to take into account, by way of reduction, the benefits accruing to them from the estate of the deceased.
One cannot help thinking that the real motive behind the special provision made in Tasmania was the mitigation of the harshness of the rule confining damages to pecuniary loss. Nevertheless, it appears to be in conflict with the accepted principle at present applied by all other Australian courts in assessing pecuniary loss. What the present bill does is face the problem squarely by way of a provision especially removing from the court the fetter of the old rule relating to pecuniary loss only. It may be urged that on this reasoning even the exclusions contained in paragraphs (a), (b) and (c) of the clause should not be made, but those exclusions are well established under State laws generally and I feel that we should repeat them in this legislation. For those reasons, I cannot accept the honorable senator’s objection.
.- I am obliged to the Minister for that full statement of reasons and considerations. I trespass on the attention of the Senate only because of the importance of this matter, particularly to people of less affluent means. I point out to the Minister that a contract for insurance is excluded from consideration in the case which we are considering - where a breadwinner has been killed in an air accident and his widow is claiming compensation from the aircraft company. It is said that if the widow derives moneys from a life insurance policy, those moneys should not operate as a reduction of the damages that she has claimed. Every one of us supports that principle, because the insurance policy would be the product of the deceased’s thrift and it would be an iniquitous inequity that it should be used to reduce the compensation payable by a wrongdoer.
Then we come to paragraph (b), which deals with superannuation. Superannuation, both in the commercial and public service field, now amounts to very substantial figures. Superannuation is sometimes payable in a lump sum and sometimes by way of an annual pension, but the sums are very substantial indeed. When a widow becomes entitled to superannuation, that superannuation should not operate so as to reduce the damages that she is entitled to claim from the aircraft company. The case that I am urging is this: You have a working man and his wife who have put their savings, not, with the aid of the Commonwealth Government, into superannuation, nor into a life insurance policy, but into a home. Because the husband’s home accrues to the widow by virtue of his will, the value of that asset, to the extent to which its enjoyment has been accelerated by the accidental death of the husband, is insisted upon as a legitimate deduction from the widow’s recovery.
I am not here to engage in needless contention, but I cannot deny that I get a little relish from supporting principles such as I am contending for now. I think the denial of these principles spells an outlook that is a little determined to fail to see that the widow of the working man is just as entitled to adequate consideration as is the widow of a public servant or the widow of a company director whose superannuation will be ample. If a public servant or a company director is killed in an aircraft accident, we exclude the consideration of that superannuation benefit - not with my disapproval, although I think the time has come to qualify the extent to which it is excluded. My researches cannot be as extensive as those of the advisers of the Minister, but it gives me considerable pride to know that a precedent exists, as he says, in Tasmanian legislation. If it exists there alone, then, as old Shakespeare said, “ The fewer men, the greater share of honour “. Tasmania can claim a unique honour in urging this reform.
So that the matter may be fully considered, just let me read from one of the law reports a case tried in Victoria in 1934. A widow claimed damages for injury to herself and her child arising out of the death of her husband as a consequence of alleged negligence of the defendant. The widow was the sole beneficiary under her husband’s will. The defendant alleged that the mishap was due to contributory negligence on the part of the husband. The judge held that, after ascertaining the total damages, if any, suffered by the plaintiff and her child and apportioning the damages between them, there should be deducted from the amount awarded as the plaintiff’s benefit the net benefit received by her under her husband’s will. Do not let me mislead the Senate. If a home is worth £5,000, you do not deduct £5,000, but you deduct the benefit of the accelerated enjoyment which the widow is deemed to derive by the fact that her husband was killed by accident at the age of 40 instead of dying from natural causes - perhaps I am being optimistic - at the age of 65. I speak for myself, with but little of my span to go.
– I venture to say that few in this Senate were not shocked when the Minister conceded the contention of Senator Wright that the courts take into account in assessing damages in cases of injury or death in air accidents all the property that a deceased breadwinner might leave to his widow. I should like to picture to the Senate the type of case that might arise. It has already been made plain that a court in assessing these damages is not to take into account a sum paid or payable out of a superannuation, provident or like fund. Let us assume that the greatest disaster of all happens and that a member of the Senate suffers death in an air accident .as a passenger. His widow is entitled, in terms of the Parliamentary Retiring Allowances Act, to a pension of £10 a week.
That is the first position 1 should like the Senate to look at. That pension will not be taken into account, or be capitalized, having regard to her expectation of life, and used to reduce the damages in her case. But if an ordinary civilian widow is involved, who gets a pension of £4 a week as a civilian widow, the value of that pension over the period of her expectation of life will be capitalized and used to reduce the amount of damages otherwise payable. Who in the Senate feels proud and happy about that? Who is proud to think that the widow of a parliamentarian getting £10 a week on the death of her husband in an air accident does not have that amount accounted in mitigation of damages, but that the widow of an ordinary civilian who becomes entitled to a widow’s pension will have that pension assessed, capitalized and used in mitigation of damages? I hope the Senate clearly understands that that is the position.
The Minister is not quite accurate in saying that only one State in Australia has made a provision prohibiting the courts from taking into account social service payments. It is clearly defined in Tasmania in two respects - I shall deal with one only now - that social service payments are not to be used in mitigation of the damages an airline operator might have to pay. In section 3 of the Compensation to Relatives Act of New South Wales there is a similar provision. That section provides that widows’ pensions, miners’ pensions, invalid and age pensions and the rest, together with any amendments that may be made to those pensions, are not to be taken into account in assessing damages, or in mitigation of damages that may be payable to dependants. I sought the opportunity to-day to examine the position in other States, but 1 must confess that others had been in the field ahead of me and that every book I wanted had disappeared from the Library. I have no doubt that, if I were to look just now, I would find them scattered around this chamber! But I do know what the position is in two States on the question of social services in mitigation of damages.
Now I come to the question of including, in mitigation of damages, property that devolves from the deceased onto his widow. I would say that the position there is very fluid. It is not so narrow that Tasmania is the only State which disregards some portion of it up to £5,000. I understand it is the practice in New South Wales for judges to direct juries not to take such an element into consideration in mitigation of damages. But at this very moment there is an appeal pending before the Full Court of that State against a direction of that nature made by a judge of the Supreme Court. So that matter is coming up for acute review in New South Wales at the moment. Having regard to the long practice of courts both here and abroad of taking property so devolving into account, it may well be that the easier position operating in New South Wales at the instance of judges will be tightened up. So I point out to the Minister that, apart from the Tasmanian legislation, the trend in New South Wales is not to take that factor into consideration. This Government ought to be moving with that modern, far more liberal tide.
– 1 should imagine that corrective legislation would follow such a decision in New South Wales.
– Having regard to the long-established practice of the judges, quite apart from law and precedent, if the Full Court reversed the practice 1 would expect any government in that State to legislate to reverse the effect of the decision. That is the modern trend, the humanitarian trend. 1 invite the committee to consider the plight of a civilian widow whose husband was killed in an air accident. Let us assume that she has a family of young children, and that there is a home and possessions of the value, we will say, of £7.500. Let us assume that damages are proved at least to the sum of £7,500. Pursuant to the position the committee now faces, the court will say, “ As a result of your husband being killed you now become the owner of assets to the value of £7,500 that you did not have before. Therefore, you will get nothing.” Imagine the plight of that widow with young children, unable to go to work herself, and debarred from the widow’s pension because of the property she possesses. What is her only outlook? It is to sell the domestic home which has been run at a reasonable standard and go into sub-standard lodgings in order to provide money to keep the family together and to keep them fed, clothed, and educated. She has to sacrifice the one great asset that has been built up through the joint efforts of her husband and herself. When that is made plain, it presents the bill in an entirely different light. I venture to say that the widow of very few parliamentarians would benefit under this legislation.
I accept Senator Wright’s warning to the committee a moment ago that the whole value of the property is not necessarily brought into account. Yesterday the honorable senator referred us to a South Australian case in which one judge - it was Mr. Justice Dixon, as he then was, but who is now Chief Justice of the High Court - said that it may well be that the value to be taken into account is the speeding up of the ownership to the lady. It is not necessarily that for the first time she becomes possessed of the asset; there is the fact of her continuing possession, and it is supplemented by complete ownership in addition to the hitherto right of ownership.
– Because of maintenance and so forth, that asset could become a liability.
– Yes, and I point out to the honorable senator, as in the case 1 cited a moment ago, that it may be obligatory upon a widow who has small assets in the form of a home and furniture to sell them in order to live from day to day and from week to week. That is not a very happy position. 1 point out, too, that in Victoria the deduction of property on the accelerated value basis has been affirmed by the courts. In 1954 Mr. Justice Sholl, in Darrack v. Ennis applied the principle of accelerated value and not of full market value. So there will be a substantial deduction from damages in respect of any property of a deceased devolving upon his widow.
Let us examine the position under this measure. Three classes of people may participate in the £7,500. One participant is the employer, if the person concerned has been injured for a long period and he has had to be paid workers’ compensation. There is also the executor, in respect of loss of profits, funeral expenses and things of that nature and, finally, the widow, children and other dependants. If the amount that is to be available between those three classes is again to be reduced by the value of assets that the deceased left to his family, it can be said that the cover given is relatively insignificant. This matter arises not only under this clause, which deals solely with the Warsaw Convention, but also in another part of the measure where the Warsaw Convention and the Hague Protocol are brought together. It applies also, in clause 38, to the domestic situation in Australia. So Senator Wright, in inviting the committee to consider the principles involved in this clause, is merely taking the first step in pointing out how far those principles extend through the bill.
We of the Opposition direct attention to the fact that these principles, in the present context, affect only international air travellers. But presently we shall be considering the domestic position of Australia. Whilst the former position is of importance to overseas travellers who are Australians, the real scope and ambit of the provision will be felt far more in this country than in relation to overseas travel. In those circumstances, I invite honorable senators to consider whether they have not a feeling of regret that these facts were not before them at a time when they were considering other motions, and to consider whether they have denied themselves the virtue of an opportunity to examine calmly the legislation of the States, to see what is the modern trend, and to see what the courts are deciding.
I venture to say that a federal parliamentarian would be in a better position to-day where the airlines provide a voluntary insurance of £2,000. At least, his widow would get that with certainty. But it is by no means certain that she would recover any portion of the £7,500 if her husband left a home worth approximately £7,000 and a few other assets, including furniture. It is exceedingly unlikely that his widow would get any benefit at all. I do not direct attention to that case because honorable senators are in any special position; I mention it in order to drive home to the members of the committee just what the facts of the case are.
On hearing the second-reading speech and in considering the ambit of the bill, one naturally felt that here was a certain cover for one’s family if one died in an air accident. Now, it has been disclosed, thanks to the immediate intervention of Senator Wright, that those damages can be offset by the value of property that you leave to your wife or, as she would be in this case, your widow. I invite the committee to watch this position particularly. I am disappointed that the Minister is not prepared to make any change. That is retrogressive in that at least two States have adopted the principle of discarding social services in calculating damages, and it is the practice of the courts in New South Wales to disregard completely property that devolves. The Minister indicated that this legislation probably would be a model for the world. In this respect, I hope that it is a model that will not be followed and that we shall reshape it before we let it go forth.
– As 1 am not a lawyer, I do not propose to enter into the legal arguments on this matter. Although the Minister has stated that we have had this bill before us for three weeks, the lay members of the Senate have been more or less frightened off by the legal terminology and the unusual phrases that we find in it. It is not until the more or less everyday aspects of the bill are brought home to us that its full implications become apparent. Since there is no immediate haste to pass the bill, I should very much like to see further discussion postponed until later, so that we could investigate all the propositions that have been discussed. For instance, I think that, like myself, the women senators on the Government side do not wish to see any injustice perpetrated through this legislation. We do not want to legislate sectionally, particularly for the women members of the community, so that one section will be placed in a better position than another.
The Minister said that legislation had been approved only in Tasmania - Senator McKenna has shown that it also has been approved in New South Wales - so he meant that it was not much good and that, we should not take much account of it. Of course, that attitude is quite wrong. This is the Commonwealth Parliament, and it should give a lead to the States in these matters, particularly in relation to social services, a matter over which the Federal Government has power. I am not at all happy about this bill. I think that there are some very objectionable features in it. 1 regret that I did not notice one of those features in time to bring it to the notice of the Minister previously, but I intend to do so while the committee is considering the clause with which it is now dealing. I refer to the payment of damages to the dependants of people who have been killed in air accidents. In referring to the classes of people to whom those damages shall be paid, we actually incorporate in legislation of this Commonwealth Parliament the term “ illegitimate child “, a term which, for many years, 1 have been fighting to have expunged, if not from the vocabulary, at least from the statute-book. Of course, there is no such thing an an illegitimate child. A child may be brought into the world through the illegitimate association of its parents. Why should the stigma thai attaches to that term be perpetuated in legislation of this Parliament?
The CHAIRMAN (Senator the Hon. A. D. Reid). - Order! With what clause is the honorable senator dealing?
– 1 am referring to clause 1 5 and to the payment of the proceeds of insurance policies to the next of kin of persons who have been killed or injured in aircraft accidents. The classes of persons to whom payment may be made are denned in a preceding clause.
– Order! That clause has already been passed. We cannot discuss it now.
– lt has already been passed, but I want to see to it that the proceeds of such insurance policies are given to all the children or dependants, and that dependants are not specifically referred to as “ illegitimate “, as they are in this bill. That is one of the matters that I think should be fully discussed.
I feel that our disputations on this measure have been far too technical. We need to get down to consideration of the ordinary, factual things to which the bill refers. If each clause were to be really taken to pieces and analysed in the way that Senator Wright and Senator McKenna have dealt with them, I suggest that we might be very surprised by the outcome of our investigations, and I think that if we were to proceed along those lines we could present a much better bill than we have in fact presented.
– Will the Minister correct me if I am wrong, or affirm the fact if I am right, that yesterday he said that the Government was proposing to bring down legislation of a general implication or character in regard to the matter of taking account of pensions and social service benefits upon the death of persons, so that in this particular case he was not prepared to accept an amendment with particular reference to this bill because the Government was in actual fact giving some consideration to the matter as one of general law?
– That is right.
.- There is a new aspect of this clause that 1 raised yesterday, and I thought that the Minister might do the committee the service of explaining it. 1 simply ask for an explanation of the meaning of paragraph (c).
– I think that I can best explain the matter by referring to volume 4 of the public acts of Tasmania, reprinted up to 1936, at page 199. Set out on that page is section 10 of the Fatal Accidents Act of that State. The section provides that, in assessing damages, there shall not be taken into account any sum paid or payable on the death of the deceased under any contract of assurance or insurance. There follows, however, a footnote in the following terms: - Notwithstanding this section, deductions may properly be made in respect of premiums which would have had to be paid by the deceased had he lived. Two cases, including one from the Privy Council, are then cited as authorities. The purpose of paragraph (c) is to avoid the odd result of the Tasmanian legislation mentioned in the footnote.
– So the word “ premium “ there is used in the sense of the ordinary premium, not a bonus?
– That is right, yes.
I wish to say something in respect of the matters referred to by Senators Wright, McKenna and Vincent. Senator Vincent asked what the Government was doing in respect of widows’ pensions, in relation to this and similar legislation. I thought that I had made it clear that the Government is giving attention to the whole question of widows’ pensions, but obviously, until a general survey of the whole situation is completed it feels unable to move and for that reason is not prepared at this time to give a direction to the courts as to how widows’ pensions and other social service benefits should be treated.
Much has been said about the items to be taken into account in mitigation of damages in the case of dependants of members of Parliament, or others for that matter, but of members of Parliament particularly, and I wondered as the criticism was being made whether members of Parliament would be better off without this legislation. That is what Senator McKenna suggested might be the case in respect of at least some members of Parliament. The fact is that these items, are not subtracted from the £7.500 but are set off against otherwise proven damages and then the statutory limit is applied. I shall give an example. Suppose that damages without taking into account items in mitigation are £12,000, that items in mitigation are £4,000, this would leave a balance of £8,000: and in that case the limit of £7,500 would apply. In other words, the £4,000 would be deducted not from the £7,500 but from the larger amount.
– From the proven amount.
– Yes, from the total damages. 1 want now to say something about the question of how widows, particularly, would be affected in the treatment of houses which they occupy. This is one matter, which, I confess, concerned me after I heard Senator Wright speak last night, and I particularly asked my officers to get for me examples of judgments which might help me in my examination of the matter. It does appear to me that the rule in connexion with the succession of property is not as harsh as might at first appear. 1 think it was Senator Wright who referred, last night, to the case of the Public Trustee v. Zoanetti. I was interested to read the comments of Mr. Justice Dixon, as he then was, on that case. He said -
When the widow succeeds to property, whether under the will or on the intestacy of the deceased, it may he a question whether the full value is deductible. The true view may be that the devolution of the property upon her has been accelerated and not caused by his death, or, as, for example, in the cass of a house in which she and her husband resided, she may have enjoyed in her lifetime some of the advantages which her ownership will give.
The suggestion of Chief Justice Dixon that the full value of the property may not have to be taken into account has since been fully confirmed - this case was in 1945, which is rather later than the 1934 case that was quoted by Senator Wright - by a decision of the Court of Appeal in England. Indeed, the Court of Appeal has gone much further and held, in a typical case, that no deduction whatever was to be made in respect of a house in which the widow was living. The case referred to is Heatley v.
Steel Company of Wales Limited, reported in All England1 Reports 1953, at page 489. In this case, the widow and children had succeeded to a house owned, on a long-term lease, by the husband. They continued to live in this house. The Chief Justice, Lord Goddard, said -
The plaintiff does not thereby come into some large sum of money of which she never had the handling before. She will simply continue to live in this house and provide a home there for the children until it is sold, and if and when it is said she will have to get another house. Her two younger children are likely to be living with her for a long lime, and her two elder children are still dependent on her.
In the circumstances the court cannot see that any sum requires to be deducted for the value of the house. A successful sale of the lease might produce £1,200, but the plaintiff would then have to find another house to provide accommodation for the children and she would be lucky if she could rent one. Therefore, she is in just the same position as before and has not benefited on this account by her husband’s death, except, possibly, by some nominal amount.
– Did the Minister say that that was a leasehold property?
– lt was a leasehold property. 1 have before me particulars of other cases which have been submitted by my officers, but I do not propose to read them and so take up the time of the Senate. But I suggest that a judgment such as the ones I have read does indicate that the rule of succession of properties does not operate in fact as harshly as one might first think it does when examining the matter.
– Senator Wright and I have made it quite clear that the full value of the property need not necessarily be taken into account, and I do not think that any member of the committee should be under any misapprehension, on that point. I indicated to the Minister that I should like to consider moving an amendment to clause 38. I awaited the Minister’s declaration of Government policy because last night he promised to give consideration to the matter. Now that he has made up his mind, I shall make up my mind, and I ask him to give me an opportunity to postpone this clause and clause 24, which is in Part III of the bill, to similar effect, until we reach clause 38. which is the one that deals with the domestic position in Australia. The other two deal with the international position.
The Minister will recognize that if the committee, looking at the Australian p:)31.tion were to decide to accept certain changes in the clause as it stands, it would be necessary to consider them fully in relation to the international aspects. So I ask the Minister to let us consider the Australian scene before we address our minds to any thought of amending clause 15 or clause 24. In other words, the matter will be considered together in relation to the three aspects. Accordingly I move -
That further consideration of clause 15, and consideration of clause 24, be postponed till after the consideration of clause 38. 1 know that at the moment we are only considering clause 15, and my motion has reference to the application of clause 24 to clause 15.
Question resolved in the affirmative.
Clauses 15 and 24 postponed.
Clause 16 agreed to.
Clause 17 (Actions against parties to the Convention who undertake carriage by air).
– Clause 17 deals with actions against parties to the convention who undertake carriage by air. The clause is not concerned with ordinary commercial operators but with national airlines, those cases in which nations are engaged in overseas airline activities. My interest lies in sub-clause (2.) which reads -
Nothing in this section authorizes the issue of execution against the property of a Party to the Convention.
That sub-clause takes us into the field of diplomatic and international relations and concerns only governments. One can well understand that the right to enforce judgments against nations should not be sought. One would rather expect that nations which are parties to conventions such as this would very readily submit to any such judgments. I am unable to find in any other clause of the bill, or in the convention, any provision relating to the enforcement of judgments that may be obtained against private operators.
The Civil Aviation (Damage by Aircraft) Act, introduced by the Minister for Civil Aviation some months ago, contained extensive provisions in relation to the enforcement of judgments. The Minister may recall the tribute that I paid to the draftsmen of that particular act. Honorable senators may refresh their minds on this point by referring to pages 12, 13 and 14 of the bill and may recall that I praised, at some considerable length, the action of the Minister in incorporating such an important matter in the bill as the enforcement of judgments at the international level.
Although any country may join the convention with which we dealt last year, it is confined mainly to Commonwealth countries which have similar systems of law to our own. When some 40-odd countries are involved, or expected to be involved, in the agreements we are now considering, one may find some nations reluctant to accept the judgments of other nations owing to the diverse systems of law.
Will the Minister indicate why no apparent attempt was made to incorporate in the Warsaw Convention or the Hague Protocol any provisions for the enforcement of judgments? The Rome Convention dealt particularly with damage by aircraft to the surface of the earth.
– I think the Leader of the Opposition will remember that when we were debating the legislation regarding damage on the surface, he himself referred to the fact - 1 thought at the time with some surprise - that in ,a convention of that nature so many countries had been brought to agreement on the question of the enforcement of judgments. Indeed, he may well recall - I think I mentioned this matter at the time - that the convention made world history because it was the first time that agreement had been reached by a group of nations which were prepared, at that time, to innovate.
We find a rather different group of nations and a rather different set of circumstances when we come to consider the Warsaw Convention. The original Warsaw Convention was done - I believe that is the correct expression - in 1929. When the meeting in connexion with the Hague Protocol took place the suggestion as to the application of a provision relating to the enforcement of judgments was informally taken up with all the parties. It then became obvious that if any attempts were made to write such a provision into the protocol vast differences of opinion would arise and, in the interests of unanimity, and having regard to the fact that such a provision had not been incorporated in the Warsaw Convention, the suggestion was not proceeded with. However, I am informed that international actions, enforcement of judgments and the like, are governed by the ordinary principles of international law.
Clause agreed to.
Clauses 18 to 23 agreed to.
Clause 25 agreed to.
Clause 26 -
In this Part, unless the contrary intention appears - “ charter operations “ has the same meaning as in the Air Navigation Regulations; “ regular public transport operations “ has the same meaning as in the Air Navigation Regulations;
– The (bill, as printed, contains references to definitions in the Air Navigation Regulations. This was a convenient form of definition which may be open to the objection that it constitutes legislation by reference. I agree that it would be preferable to have the definitions spelled out in the bill itself. We do not mean to distinguish between charter operations and regular public transport operations, both of which may be described as operations for the carriage of passengers or goods for hire or reward. We propose, therefore, to define the expression “ commercial transport operations “ and to use it in place of the other two expressions. Honorable senators will have read the draft amendments distributed, and I shall move the amendments at the appropriate stage.
We felt also that the absence of any specific reference to charter operations might give rise to some doubt as to whether liability under the bill falls on an airline operator carrying passengers on charter flights where the passenger’s contract of carriage is with the charterer of the aircraft rather than with the airline operator. The third amendment is intended to remove doubts on this point by providing that the contract between the operator and the charterer is deemed to be a contract for the carriage of passengers or baggage. The rights and liabilities of the passengers and the charterer, as between themselves, is a matter outside the scope of this bill and may be regulated by the contract between them.
The fourth proposed amendment will substitute the expression “ commercial transport operations “ for the expression “ regular public transport operations or charter operations “ in clause 27 (1.) of the bill.
I move -
Leave out the definition of “ charter operations “, insert the following definition: - “ ‘ commercial transport operations ‘ means operations in which an aircraft is used, for hire or reward, for the carriage of passengers or cargo; “.
– I rise again to comment on the loose wording of the clause under discussion. The Minister proposes to strike out the definition of “ charter operations “ and insert a definition of “ commercial transport operations “. My experience in courts leads me to believe that the proposed amendment, as worded, can apply to passengers only or cargo only when carried in an aircraft used for hire or reward. Take the case of an aircraft that is carrying both passengers and baggage. The proposed amendment does not cover both operations, as it were. An aircraft registered to carry passengers might also carry some cargo without being registered as a cargo carrier. In cases where two operations are involved, the courts usually separate them. For instance, under this proposal, the court would say either that the aircraft was carrying passengers or that it was carrying cargo.
I have found that it is essential that the words “ and/or “ be written into legislation. This ensures that when an aircraft is carrying passengers and cargo, both operations are covered. The wording of the proposed amendment is too loose. It places a passenger on a plane, which is also carrying cargo, in a most difficult position. The same difficulty arose in connexion with other legislation dealing with compensation. That position has been corrected recently and, as this is really a compensation measure, I submit that the provision should read “ and/ or “. That will cover a passenger irrespective of whether the plane is also carrying cargo, and will clarify the position. I ask the
Minister to give this matter serious consideration, and I have made the suggestion because of the loose wording inserted in legislation from time to time.
– I have listened with considerable interest to the point made by Senator O’Flaherty, but 1 point out to him that the suggested amendment does not provide that “ commercial transport operations “ means operations in which aircraft is used for the carriage of either passengers only or cargo only.
– But it is registered for passengers in the one case and for cargo in the other.
– If the aircraft carries passengers, that makes it a commercial transport operation, irrespective of whether it carries cargo. If the aircraft carries cargo, that, too, makes it a commercial transport operation, irrespective of whether the aircraft carries passengers. My advice is that that is the interpretation which the courts put on a provision such as this.
– The Minister is dealing with the first part of the clause which says - “ air line licence “ means an airline licence in force under the Air Navigation Regulations.
The clause then goes on to deal with registered baggage, personal effects and so on; but it does not provide for an airline carrying baggage apart from personal baggage. Certain airlines carry all kinds of cargo apart from personal baggage. For instance, planes carrying freight pick up passengers at times. They are not covered by the proposed amendment. I suggest that the Minister ought to have another look at the matter.
– The proposed amendment is to leave out the definition of “ charter operations “ and to insert - “ commercial transport operations “ means operations in which an aircraft is used for hire or reward, for the carriage of passengers or cargo.
The submission I would make would be that the use of the words “ commercial transport operations “ picks up either passengers or cargo, and that “ cargo “, in the broad sense, would include not only merchandise but registered baggage, if need be, and, if there were a passenger, it would include the personal effects of the passenger. Would that be putting the position accurately?
– That is so. “ Cargo “ is not actually defined1. It is assumed that “ cargo “ means just that.
Amendment agreed to.
Amendments (by Senator Paltridge) agreed to -
Leave outthe definition of “ regular public transport operations “.
At the end of the clause add the following sub-clause: - “ (2.) For the purposes of this Part, where, by reason of a contract of charter or other contract between the holder of an airline licence and another person, persons or baggage are or is carried, or are or is to be carried, in an aircraft while it is being operated by the holder of The airline licence, that contract shall be deemed to be a contract of carriage providing for that carriage.”.
Clause, as amended, agreed to.
Clause 27 - (1.) This Part applies to the carriage of a passenger where the passenger is carried in an aircraft being operated by the holder of an airline licence in the course of regular public transport operations or charter operations, or in an aircraft being operated in the course of trade and commerce between Australia and another country, under a contract for the carriage of the passenger -
Amendment (by Senator Paltridge) proposed -
Leave out “ is carried in an aircraft being operated by the holder of an airline licence in the course of regular public transport operations or charter operations “, insert “ is or is to be carried in an aircraft being operated by the holder of an airline licence in the course of commercial transport operations “.
.- I should like to know why sub-clause (2.) relates to the Australian National Airlines Commission only. I understand that that commission operates intra-state air services in one State, Queensland, by virtue of power referred to the Commonwealth. By virtue of what constitutional power is the subclause confined to the Australian National Airlines Commission, as distinct from any carrier of passengers, cargo or baggage intra-state?
– As Senator Wright says, the Australian National Airlines Commission operates in Queensland and for that reason it is necessary that this provision be put into the bill. It does not apply to other operators.
– Ansett-ANA also operates intra-state.
– It operates from Brisbane to Mount Isa.
– The arrangements relating to the reference of power by Queensland are considered to be not wide enough at present to include private operators. That is one reason why the application of the sub-clause is restricted to the Australian National Airlines Commission.
.- I am obliged to the Minister, but I wonder whether he would consider a suggestion made in anticipation of constitutional amendment or reference of power. Surely it would have been much wiser to frame the clause so as to extend the provisions of this part, which are applicable to interstate trade, to all intra-state trade by air carriers operating by virtue of any constitutional power of this Parliament which would be gained hereafter by constitutional amendment or by reference on the part of any particular State.
– I am advised that it is not possible to legislate in anticipation of a reference of power.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 28 agreed to.
Clause 29 (Liability of the carrier in respect of baggage).
.- I merely rise to ask the Senate to notice that sub-clause (1.) reads -
Where this Part applies to the carriage of a passenger, the carrier is liable under this Part, and not otherwise, for damage sustained in the event of the destruction or loss of, or injury to, baggage of the passenger, if the occurrence which causes the destruction, loss or injury takes place during the period of the carriage by air unless the carrier proves that he and his servants and agents took all necessary measures to avoid the destruction, loss or injury or that it was impossible for him or them to take such measures.
One notices there an incorporation - in relation to liability, interstate, for loss of baggage - of a conditioning clause which has been lifted from the convention. The Minister referred to it as a very narrow defence. I agree with that view, but it seems odd to me that those words should be used in Australian legislation to indicate a situation in which a defence is available. I refer to the words - . . all necessary measures to avoid the destruction, loss or injury or that it was impossible for him or them to take such measures.
The English wording is awkward, meaningless and inept in our legislation.
– The defence “ that the carrier took all necessary measures to avoid the damage “ has been retained, following the pattern of the international convention. In the case of baggage, there is no justification for depriving the carrier of the defence. The convention powers thought that in the absence of the defence there would be a flood of small, and perhaps spurious, claims by passengers alleging loss or destruction of baggage. The carriers would find great difficulty in resisting such claims if they did not have at least this narrow defence.
Clause agreed to.
Clause 30 (Complaint to be made in respect of baggage).
– Clause 30 is to be found in Part IV. of the bill and its operation is confined to airlines that are solely within the domestic jurisdiction of the Commonwealth. We are not now dealing with overseas airline operations.
The committee will notice that an action is not to lie against a carrier in respect of damage unless there has been a complaint by the passenger in writing within a certain very limited period. The period varies from three days to 21 days, according to the nature of the baggage. Those limits are quite arbitrary and conclusive, and if not complied with no action whatever for damages will lie.
I regard that as a very harsh provision and at the second-reading stage foreshadowed an amendment enabling a court to extend the limits wherever that appeared just and equitable. The Minister was good enough to indicate, in his second-reading speech his readiness to accept an amendment which has been circulated in my name for some days. Accordingly, I do not address myself to any argument in its support. 1 merely move formally -
At the end of the clause add the following sub-clauses: - “ (3.) A court having jurisdiction in actions under this Part in respect of baggage may, by order, grant leave to a person to institute or continue an action in that court in relation to baggage notwithstanding that there has been a failure to complain in accordance with the last preceding sub-section within the time fixed by that sub-section, where the court is satisfied that it is just and equitable to do so by reason of special circumstances. “ (4.) Sub-section (2.) of this section does not apply in relation to an action in respect of which leave has been granted under the last preceding sub-section.”. 1 conclude with the comment that it is possible that an aircraft, either landing or taking off, will capsize and a large number of passengers will be injured, rendered unconscious, or at least sent to a hospital. Possibly the last thing they would think about would be lodging a complaint in respect of their baggage. If the Minister agrees with the proposition, I feel I need not advance my argument in favour of the amendment any further.
– i think the amendment is a valid one. It improves the legislation, and I am pleased to accept it.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 31 (Limitation of Liability).
.- This clause, I suppose, is the key clause of Part IV. It starts with its brand on its forehead - the mark of Cain. It reads -
Subject to the regulations relating to passenger tickets, the liability of the carrier under this Part in respect of each passenger, by reason of his injury or death, is limited to the sum of Seven thousand rive hundred pounds or such higher sum as is specified in the contract of carriage.
The liability is limited to £7,500, but the whole clause is conditioned by and is subject to regulations relating to passenger tickets. When you look to find what the bill foreshadows as to regulations, you go to clause 40, which provides -
The regulations may make provision relating to passenger tickets- 1 leave out the immaterial words - including provision for -
the non-application or modification of any of the provisions of section thirty-one of this Aci where the regulations relating to the issue, form and contents of such tickets or checks have not been complied with.
It is contemplated that a general power will exist to make regulations in relation to passenger tickets, and specifically to make regulations for the non-application or modification of clause 31 where the regulations relating to the tickets have not been complied with. That means, if those preliminary words are retained in clause 31, that regulations could be used to say that in any case where regulations as to the issue, form and contents of passenger tickets have not been complied with, clause 31 shall not apply or that any of the provisions of clause 31 shall be modified. The word “ modification “ includes modification up, down or sideways. I would think that it is a very unwise provision for the Senate to agree to in relation to the key clause of Part IV. of the bill - a bill which limits the liability to £7,500 or such higher sum as is specified in the contract for carriage.
– Would paragraph (c) of clause 40 have to be read to mean that the modification would be only insofar as it was contrary to clause 31?
– I do not quite understand that view.
– I am referring to the non-application or modification of any of the provisions of clause 31 where the regulations have not been complied with. I donot want you to sit down, Senator.
– I have finished what 1 wanted to say, and I would like to hear Senator Byrne’s point developed further. All I want to do is to ask the Minister to deal with the words “ Subject to the regulations relating to passenger tickets “, and to introduce into the bill a substantive provision that would have the force of law in specifying the cases where, in relation to passenger tickets, clause 31 of the bill had to be modified or was not to apply.
– My question was merely directed to clause 40 (c), which contains the words -
The non-application or modification of any of the provisions of section 31 . . .
Would such non-application or modification apply only to the extent to which the regulations had not been complied with?
– It is where they have not been complied with.
– Clause 40(c) and clause 31 would, in my opinion, be read together in complete harmony, without reading clause 40 as giving the opportunity of completely nullifying the effect of clause 31. That was the question I directed to Senator Wright. He might be good enough, when he has time to have a glance at it, to give me his interpretation.
– I move -
That consideration of clause 31 be postponed until after consideration of clause 40.
I am proposing to accept an amendment which has been circulated in the name of Senator McKenna in respect of clause 40. I think that when the amended clause is seen and considered, it will probably alter the course of the present debate.
Question resolved in the affirmative.
Clause 31 postponed.
Clause 32 (Contracting out).
.- I wish to refer to sub-clause (2.). The very welcome provision prohibiting contracting out in relation to liability in accordance with this part of the bill is set out in sub-clause (1.). Sub-clause (2.) provides that you can contract out where the loss or damage arises from inherent defect, quality or vice of goods carried.
– What does vice mean?
– Vice in relation to goods means the same as it does in relation to men - something that is vicious or bad. A common carrier might say that his strict liability did not apply in a case where the goods had an inherent defect or in a case where the loss or damage was due to an act of God or due to the Queen’s enemies. I think that this permissible scope for con tracting out was suggested by the exceptions to the strict liability that the carriers have in common law.
I just invite information as to why it is not permitted to contract out in the case of damage resulting from an act of God or from the action of the Queen’s enemies. It occurs to me that possibly those two circumstances are thought to be covered by the “ unless “ provision of clause 29 (1.). I have had too little time to satisfy my own mind on the matter, and I seek comfort of mind.
Clause agreed to.
Clauses 33 and 34 agreed to.
Clause 35 - (2.) Subject to section thirty-seven of this Act, the liability under this Part is in substitution for any liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger.
Amendment (by Senator Paltridge) agreed to -
After “ any “, first occurring, insert “ civil “.
Clause, as amended, agreed to.
Clause 36 -
Amendment (by Senator Paltridge) agreed to -
After “ any “, first occurring, insert “ civil “.
Clause, as amended, agreed to.
Clause 37 -
Nothing in this Part shall be deemed to exclude any liability of a carrier -
Amendment (by Senator Paltridge) agreed to -
In paragraph (b) leave out “ another ,;, insert “ a “’.
.- I move -
At the end of the clause add the following sub-clause: - “ (2.) Nothing in this part shall exclude or limit the liability of a carrier or his servants or agents, for damage resulting from negligence.”.
The previous clauses impose on carriers strict liability to a limited amount - liability which accrues in a case where damage is caused with or without negligence. When I speak of negligence, 1 mean ordinary carelessness. So the liability imposed by the bill is imposed on the carrier whether he or his servant has or has not been careless. Then it is provided that that is the only civil liability which the carrier undertakes. But clause 37 provides that nothing in these provisions is to exempt the carrier from indemnifying an employer who has paid workers’ compensation in respect of a deceased or injured passenger, or is to prevent the carrier from remaining liable to contribute to any damages that any tortfeasor, or joint wrong-doer, has caused.
The purpose of my amendment is to ensure that where the carrier or his servant has been negligent and that negligence has caused damage by way of injury or death to a passenger, his liability shall be preserved and not limited to ?7,500. I put this viewpoint before the committee because I think a fundamental principle of the greatest importance is involved. If the Minister opposes the amendment, I ask him to be so good as to instance one case in the conduct of commercial operations in Australia where any person taking the advantage and benefit of our laws for the purpose of commerce enjoys an immunity, either total or limited, from paying compensation for the negligent conduct of his undertaking.
One of the principles of our law which is almost as fundamental as is the oxygen in the atmosphere we breathe is that any person who is injured by a negligent or careless action is entitled, as an individual fundamental right, to claim compensation in respect of the injury inflicted. I submit that no case can be established in favour specifically of commercial aviation carriers entitling them to an exceptional immunity from liability, where they have been careless, for compensation in excess of ?7,500.
– Would the honorable senator care to differentiate between his amendment and the amendment moved yesterday by Senator McKenna?
– I shall be quite happy to do that. The commercial aviation carrier has no right to be in the unique position of being exempted from liability above ?7,500 for negligence, as this bill proposes. The argument that I have to meet, I understand, is that the bill has imposed on him a strict liability, irrespective of negligence, up to ?7,500. On a formal basis, there is some attraction in that argument; but it is a formal argument only. It is a mere husk of an argument, a mere shell. When you examine it, there is no meat in the egg.
Senator Sir Neil Sullivan. ; There is meat only in bad eggs.
– Not as 1 understand it. When you are considering liability for negligence, it is a truism, I think, that the greater the potential for damage the stricter is the standard of care that you are expected to exhibit. So, too, if you are dealing with potentially dangerous instruments, such as a munitions factory, a sulphuric acid plant, or firearms, the care that is expected of you is of the strictest character. Dealing with commercial operations in which the potential danger is, I submit, extremely great, to say that you are substituting a strict liability for a liability for negligence has a very slight shade of meaning when you are considering the degree of care involved in the statutory liability, as distinguished from the degree of care required before the statute was passed.
Involved in the same argument which I am answering at the moment also must be the cases in which evidence is not forthcoming to enable plaintiffs readily to prove negligence. I agree that that is so. But, due to the exceptional circumstances of aviation, that is only adding evidence to enable a plaintiff to rely upon the doctrine which is relied upon, I understand - I hope that I shall be corrected if I am wrong - tully in America, where the plaintiff, unless the defendant can show an absence of negligence, is entitled to succeed. That is what we call in legal terms, which I hope to be able to mouth here without offence to Senator O’Flaherty, res ipsa loquitur. I feel that this matter involves a fundamental principle.
If the proposition that 1 have put forward is being challenged, 1 want the Minister to cite to me any other legislation on the statute-book, either here or in Great Britain, other than that based upon this convention, which gives an immunity from the negligent operation of a commercial undertaking.
– The honorable senator is not including in that government activities, such as railways, is he?
– Senator McKenna reminds me of the legislation in Australia with relation to government railways. I am obliged to him for doing so. I referred to this matter during the second-reading debate yesterday, and I spoke of the quite anomalous limitation of liability due to the circumstances of the colonies which imposed that limitation and to the fact that in those times governments had not passed legislation to enable their subjects to sue them because they claimed the royal prerogative that the king could do no wrong. They allowed compensation to be paid as a matter of grace or favour, so T suppose they thought they had given a considerable evidence of their generous disposition when they allowed compensation of tin to £2.000. But those circumstances, based upon the special position of the Crown. T do not regard as in any way analogous to the matter we are discussing.
When I invited the Minister to put forward instances of a commercial undertaking being given, by British or British dominion legislation, immunity from damages in consequence of the negligence of it or its servants. I did not have that anomalous situation in mind. When I sneak of “ negligence “, Mr. Temporary Chairman. T remind you that we already have referred to in this statute negligence of the ordinary variety, but we also have a reminder that negligence may take the form of conduct so criminal as to be conduct with the intent to cause damage, or so grossly culpable as to be conduct which, in another context, is described as reckless, with the knowledge that injury will result. When we realize that this bill, if unamended, will exempt air carriers from liability in excess of £7,500 in the case of that gross negligence, and also in the case of that criminal negligence, the enormity of the proposition that they should have a privilege in that respect appears to me to be unanswerable. I submit, therefore, Sir, that the amendment should be accepted.
Senator Sir NEIL O’SULLIVAN (Queensland) [10.46]. - There is, no doubt, substantial merit in some of the points raised by Senator Wright, but this is a question of plus and minus. Where would we be without this measure? The position would be that the airline authorities could contract themselves out of liability, as the shipping companies do. We have the advantages that the airline authorities cannot contract themselves out, and that damages are payable, not on proof of negligence, but merely on proof of damage, which must save a lot of litigation. People who may be injured at least will have the comfort and consolation of knowing that there will not be any tedious litigation to establish negligence. That is a very substantial advantage. What is taken away is the right to unlimited damages, but that is more notional than real. Clause 31 must be looked at. Upon payment of a fee, an air traveller may obtain extra cover. The clause does not specify the rate, but T think it is 2s. per £1,000, so that for the payment of £1 he may obtain insurance cover for £10,000. The air carrier will give that additional cover on payment of that comparatively nominal extra fee. So really, the passenger will receive much more, as the result of this legislation, than will be taken away from him.
There is another advantage, too. in respect of the rate of insurance and the freight rate which the air carrier may charge. I should imagine that the effect of the liability for damages of up to £7,500, without proof of negligence, on the assessment of charges for air tickets would have been worked out actuarily. The airlines would know that they would have a certain number of passengers per flight, and therefore a certain number of passengers per year, and they would be able to assess fairly accurately what the extra cost would be. But in the event of liability being completely unlimited, there necessarily would be a very substantial increase in fares. I read recently, in respect of an air disaster where the liability was unlimited, that the amount involved was something like £500,000.
– Would not the airline companies insure themselves against such a contingency?
– 1 do not know, but I should imagine that they would not. The point is that those costs would be incorporated in the transport charges. If the companies know that the maximum liability is £7,500, they can assess accurately the amount by which they need to load their tickets to meet that contingent liability. If the liability were completely unlimited, quite conceivably ruination could befall an airline company. It would be very difficult for a company to get cover for such an astronomical amount. However, to sum up, I say that without the measure the passenger would be infinitely worse off. He is losing his right to claim for proven negligence a higher amount than £7,500, but he gets the advantage of a statutory provision of £7,500 without proof of negligence. I think the Latin phrase res ipsa loquitur - the thing speaks for itself - sums up the position. Negligence is inferred prima facie, with the responsibility falling on the defendant to rebut it. So far as I understand, this has never been done in the case of an aircraft accident.
– Not here, but in America.
– In
England, it has been urged but not accepted by the courts. It has been argued before the courts. There is the question of icing up; and although remarkable developments have been made in aircraft engines, they are not yet at such a stage of perfection that any defect would automatically imply negligence on the part of those operating the aircraft. I do not think that is a matter on which we can rely. On balance, I think the passenger will get a better deal with this bill than without it.
– Senator Sir Neil O’sullivan has mentioned two points. First, he referred to the amount of money that it would cost if there were provision for unlimited liability. From the point of view of economics, I know that the insurance of aircraft and that sort of thing costs the people running them a considerable amount. But that factor pales into insignificance when compared with the point raised by Senator Wright that inherent in all British law is the right of action for negligence. If we put one against the other - the cost against the waiving of the negligence claim - quite obviously we must come down on the side of maintaining British law. After all, if the cost factor had predominated, there would not be on the statute-book of Australia legislation to provide for workers’ compensation and the like.
Senator Sir Neil O’sullivan directed his attention to whether the passenger would be worse off under the amendment. Although that is arguable, I should again like to direct the attention of the Minister for Civil Aviation (Senator Paltridge) to the report on the aircraft crash in Western Australia that I mentioned last Wednesday night. He has since had ample opportunity to examine that report. I shall just recall the circumstances briefly.
The committee of inquiry found that there was negligence on every hand. The pilot, it suggested, should never have been allowed to fly. The report stated that the loading officer did not load the plane correctly. No record of repairs of high precision instruments had been kept. There was no evidence that the mechanics who handled the plane were competent. In its summing up, the committee said that just for one of those reasons alone the airline company should have had its charter taken from it. I suggest that if the witnesses had given sworn evidence in a court, it would have been accepted as being strongly in support of negligence on the part of the company. After summing up the evidence, the committee - and I should like the Minister to comment on this - made exactly the same suggestions that Senator Wright has put forward to-night, and contradicted the proposition that has been advanced by Senator Sir Neil O’sullivan.
Obviously, that committee had a much greater opportunity than this chamber has of examining a particular crash. After taking into consideration the loss that resulted from the crash, the committee recommended that there should be an automatic right of recovery up to a maximum amount and that, in addition, there should be nothing to prevent a person from suing, on the grounds of negligence, for unlimited liability.
I suggest to the Minister that that is fairly strong evidence because it is the one occasion - the only one that I know of - when a committee has been able to examine a specific crash and apply itself to what should be done in the future.
– The honorable senator is relying on res ipsa loquitur, but in that instance the committee found evidence.
– The witnesses who gave evidence were expert witnesses whose evidence would have been acceptable if they had been summoned to appear before a court. I emphasize that the committee’s recommendation was exactly the same as what is being asked for to-night. Some important principles are involved. First, we should preserve the right to sue for negligence. I suggest that merely because a certain provision would cost somebody a large amount of money we should not waive this important principle of British law.
– I was entirely in agreement with Senator Wright when I said, during the second-reading debate, that this provision is the critical feature of the bill. There is not any question about that. Nor can there be any question that the alteration of the common law that the bill proposes to make is in the nature of a revolutionary change. That does not dispose of the problem in Senator Wright’s mind, or the complicated provisions of this measure. Merely to say that it is a fundamental change or a revolutionary change does not help us one scrap. We have to go much further than that and ask ourselves what is the nature of the change and whether or not it is a beneficial change. That is the real issue that we must look at.
I think all honorable senators will agree with the first proposition that I want to make. There can be no doubt at all that in many cases the potential plaintiff who has the responsibility of proving negligence in an aircraft accident is up against it for lack of evidence. As Senator Sir Neil O’sullivan has mentioned1, one does not necessarily invoke the law of res ipsa loquitur in an accident. One has to prove, as a matter of law, the question of negligence. I think it would have been quite easy for the Government to introduce a very simple piece of legislation which in effect said two things: first, there can be no contracting out in the case of a carrier, and secondly, that the plaintiff could retain his common law right to proceed for an unlimited amount if he could prove negligence.
– But not an absolute liability.
– It would have been very simple, I suggest, for the Government to have done that. That might have pleased Senator McKenna, and it might have pleased Senator Wright up to a point. But I suggest that the Government has gone a long way further than doing that. It has examined the merits of such a proposed alteration to our law and I think, on balance, that we must accept the fact that the Government’s contentions have got a great deal of merit. The first one, as I have said, is the difficulty of a plaintiff in establishing negligence. The difficulty of a plaintiff in establishing any evidence is a profound one when you consider the number of airline cases one could get; and when you consider the high cost of litigation in cases when witnesses have to be brought from half-way round the world, I shudder at the possible cost of litigation in order to establish negligence. As every one knows, the high cost of litigation is a serious matter.
– This clause relates to Australia alone.
– Yes, but the pilots do not necessarily stay in Australia.
Consideration interrupted.
– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Chairman do now leave the Chair and report to the Senate.
Question resolved in the affirmative. (The Temporary Chairman having reported accordingly) -
page 461
The PRESIDENT (Senator the Hon. Sir Alister McMuIlin). - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
– I apologize for detaining the Senate at this Late hour, but I feel it is necessary in view of what I might term a new development in political controversy in another place, a development to which I shall refer as political scavenging, a phrase that was coined by a former friend of mine. Unfortunately, due to the operation of the present electoral system, my party is not represented in the other place. If representation were based on the percentage vote obtained at the election, we would have eleven or twelve members in that chamber. The practice to which I refer, and to which newspapers give their attention, is the raking-up of cases of certain persons who are alleged to have criminal convictions, referring to their association with political or trade union matters, and then stating that they are members of the Australian Democratic Labour party, hoping that people will assume that members of the D.L.P. generally have criminal tendencies.
I am surprised that that practice has developed in the other place and I pay tribute to Opposition senators for not descending to that level. During the election campaign in 1954, following the split in the Australian Labour party in Victoria, an attack was made upon a member of the A.L.P. who was alleged to have criminal convictions. Great indignation was expressed by the Labour party - no doubt rightly - at the fact that such matters should be brought into politics.
I read with regret in the press last year reports of a statement made by the then honorable member for Darebin, Mr. R. W. Holt, in which he went to great pains to point out that a trade union official had been convicted of embezzling the funds of his union, that he was an industrial grouper and, no doubt, was associated with the D.L.P. Apart from the political aspect, on ordinary humane grounds I am sorry that such matters should have been raised. The man had been tried and convicted, and had paid his debt to society. The tradition exists in British communities that when a man has paid his debt to society his crime should not be brought up against him except in very exceptional circumstances. The man in question was married and had children, and was trying to earn a living. He should not have been attacked.
However, I point out to honorable senators that the honorable member who brought this matter to light did not mention that the succeeding administration in the union concerned was elected on a unity ticket of A.L.P. members and Communists, and that a similar case of embezzlement occurred in which the assistant secretary was accused of not accounting for all the money in his care. While the industrial grouper was tried, convicted and sent to gaol as a result of the legal action taken by the union, the Communist assistant secretary was allowed to resign without any penalty being imposed on him at all. In fact, the union made the pious declaration that it did not know what had happened to the money. If I had wished to rake up such matters, I could have mentioned three cases of union officials, members of the A.L.P., who were in similar trouble at about this same period, but I forbore to do so because I did not think elections should be fought in that way.
I have been constrained to bring this matter before the Senate because of a statement made within the last week or two, strangely enough by the new honorable member for Darebin (Mr. Courtnay) during his maiden speech. I have always understood that maiden speeches should not be provocative. If the speech to which I refer had been in that category I should not have mentioned it, but it was not. In the course of his remarks the honorable member said -
Yet two gentlemen - I shall call them gentlemen for the moment, Sir, and I shall give you their criminal records later, although I may say now that both were members of the Democratic Labour party . . .
The honorable member alleged that two persons had criminal records. At a later stage in his speech he gave details of the criminal record of one but did not mention the other. In effect, he traduced two persons but produced evidence against only one. He gave the man’s name and listed a series of convictions, presumably obtained from a police file. His action was opposed to the policy of his party in Victoria which took strong exception to any reference being made to police files on members of the party. One of the convictions to which the honorable member referred was for being found on licenced premises after hours. Looking round this chamber, I feel constrained to say, “ He that is without sin among you, let him first cast a stone “.
I do not know whether the honorable member’s statements are true, but apparently he attacked the man concerned because he is a trade unionist. If a man has convictions, can he not still be a trade unionist? If I were so minded, I could quote, from my knowledge of the Labour party extending over a long period, many cases of gentlemen with whom the honorable member for Darebin is associated in trade unionism who also have criminal convictions.
– And also members of the Liberal party.
– Perhaps the Liberal party also is not without its black sheep. Why should any person rake up a man’s criminal convictions and then go to the great trouble to say that he is a member of the D.L.P.? As I have said, I also could rake up similar cases, but that is not the way a political fight should be waged. I have never objected to the methods adopted by any person in fighting elections. Everyone is entitled to fight in the way that is most congenial to his nature. If I am attacked, I never have any difficulty in defending myself and, should this matter of criminal convictions be raised again, I shall know how to defend myself. We should all adhere to certain standards. 1 am pleased to say that those standards have been observed in this chamber, but not, I regret to say, in another place. The honorable members to whom I have referred should realize that certain standards ought to be observed in political controversy and, if they are observed, Parliament will be a better place.
– Yesterday, in another place, the honorable member for Yarra (Mr. Cairns) asked a question in relation to persons who are at present parties to litigation under consideration by the High Court, and who have been engaged in litigation of some importance in Hobart justifying their rights over the last twelve months. In his reply, Sir Garfield Barwick answered the question very adequately so far as it affected the Hurseys. But included in the question, were these words - ls it a fact that Mr. and Mrs. Hursey did swear false evidence in this case? Were their interests being watched at that time by counsel? If so, who was the counsel? Has this counsel also appeared in another well-known case in Tasmania in which it has been alleged that perjury occurred?
Mr. President, I rise to issue a challenge. I challenge anybody to question my professional integrity in regard to these cases, or in regard to any other case that I have professionally conducted. I should like to see the honorable member carry his responsibility to the stage of making such an allegation elsewhere than where he had the privilege of Parliament. It is an imputation of a disparaging nature offered to me in my capacity as professional counsel, not in my capacity as a parliamentarian. I regard it as the most despicable utterance that could emanate from even such a degraded intellect as that of Mr. Cairns, a former police detective who resigned some years ago. The honorable member for Yarra was then a prominent person in the peace organization which was banned by the Labour party as a Communist subsidiary during the five years preceding 1950. He was almost unknown in his present party until the split occurred in which the Communists were given an opportunity of open prominence.
– I rise to order. Is the honorable senator entitled to smear and besmirch a member of another place when that honorable member is not able to defend himself? I submit the honorable senator is out of order.
– The honorable senator’s point of order is not upheld.
– lt is sufficient that there should be a Wright. This person was also a member of the Toorak branch of the Australian Labour party in 1950 when it was banned by the central executive on the ground that it was bogus because the only time it met in many months was to organize opposition to the banning of the Communist party. The evidence that this person associated with Communists and advanced this propaganda is manifold.
On, Nth March, 1948, the Communist “ Guardian “ reported the following speakers at a meeting of the Victorian, Prices Vigilance Committee, a Communist front organization: - J. F. Cairns; Dorothy Cameron, an open Communist; J. J. Brown, an open Communist, and secretary of the Australian Railways Union; P. Malone, an open Communist in the Building Workers Industrial Union; and Thelma Lee, an open Communist.
In May, 1948, the University Labour Club held a week-end at Healesville, at which the speakers were J. F. Cairns, Ralph Gibson, president of the Communist party, and E. Laurie, who has stood at elections as ii Communist.
In September, 1949, the Communist “ Guardian “ reported J. F. Cairns as being chairman of the inaugural meeting of the Peace Council which the Chifley Labour party branded as a subsidiary of the Communist party, and in July, 1955, the Communist “ Guardian “ reported an “ Open Trade Routes “ meeting convened by J. Young, an open Communist. Amongst the speakers was J. F. Cairns. What is the relevance of this?
– -Macarthyism
– It is all very well for the honorable senator to jibe at me when the very thing of which I am complaining is the smear tactics which are typical of the Communists in whose confidence J. F. Cairns is well known to be and of whom T should say he is a supporter. What is the interest in this matter? The case in respect of which he is so bitter - the case of the Hurseys - is a case in which these people are defending their rights against what they concede to be Communist tactics which have become so entrenched as to cause them to resent politi cal levies in the interests of opposing political parties. The honorable member’s bitterness comes from the fact that the Hurseys succeeded in the law courts against a union of which four of the five executive officers were Communists. And this man shows his resentment in a malicious form by resorting to typical Communist tactics in smearing me in my professional capacity. I have said sufficient to refute such smear tactics and I rise to express my resentment and contempt for such a despicable performance under the privilege of Parliament.
I want to add only one thing. Have honorable senators noticed the calculating deceptive language in which the last matter, in which it has been alleged that perjury occurred, is referred to? We know that case, and we know there are scavengers who would like to collect some evidence as to the falsity of the evidence upon which my client overwhelmingly succeeded in persuading a court of justice as to the veracity of her cause. We also know that there have been a few critics who, upon second thoughts, and upon thirteen thoughts, have tried to collect evidence suggesting that some of the evidence in the matter was false.
That case went before the High Court, and that magnificent tribunal - magnificent not because of its performance in that case, but because of its reputation, which is broad-based throughout the Englishspeaking world, as one of the courts of the greatest pre-eminence that has ever had the privilege of dispensing jurisprudence - without hearing me, said that it was quite satisfied that the evidence justified the trial judge’s conclusion as to the cause of my client and that there was not the slightest reason for it to interfere.
Then the utterance of this person is deemed worthy of print by a local journal which I hope, as will be its duty, will publish on the morrow the refutation, or else, if the defamation law of New South Wales is as effective as that of other States, its failure to publish it will be evidence of malice. This person has the effrontery to make an insinuation, by a miserable innuendo. He asked -
Has this counsel also appeared in another wellknown case in Tasmania in which it has been alleged that perjury occurred?
The courts of justice before whom the evidence was critically examined and crossexamined never suggested that perjury had occurred. A few scavenging, snivelling critics with whom the honorable member for Yarra finds it convenient to associate might conceive in their malicious minds that there was suspected perjury, but only Senator O’Byrne and Mr. Cairns, and men of their ilk, would deign to put it in the form of an allegation so as to disparage my reputation.
Question resolved in the affirmative.
Senate adjourned at 11.21 p.m.
Cite as: Australia, Senate, Debates, 18 March 1959, viewed 22 October 2017, <http://historichansard.net/senate/1959/19590318_senate_23_s14/>.